Opinion
2023-CA-0807-WC
08-30-2024
PAXTON MEDIA GROUP APPELLANT v. LYNDA HAMMOND; CHIKWENDU NWOSU; HONORABLE CHRIS GREG DAVIS, ADMINSTRATIVE LAW JUDGE; MICHELLE ONACKI, PSY NP; PING YANG; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: W. CHARLES JOBSON LOUISVILLE, KENTUCKY NO BRIEF FOR APPELLEE.
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-97-89398
BRIEF FOR APPELLANT: W. CHARLES JOBSON LOUISVILLE, KENTUCKY
NO BRIEF FOR APPELLEE.
BEFORE: ACREE, KAREM, AND LAMBERT, JUDGES.
OPINION
ACREE, JUDGE
Appellant, Paxton Media Group (Paxton) appeals the June 9, 2023 opinion of the Kentucky Workers' Compensation Board (Board) affirming Administrative Law Judge (ALJ) Chris Davis's October 22, 2022 opinion regarding Appellee Lynda Hammond's course of treatment for a decades-old workplace injury. Paxton challenges both the ALJ's application of res judicata to the issues of causation and work-relatedness, and the ALJ's conclusion that Hammond's course of treatment continued to be reasonable and necessary. We affirm.
BACKGROUND
We note at the outset that Hammond did not file a brief in this appeal. Under RAP 31, our options when an appellee does not file an appellate brief are as follows: "(a) accept the appellant's statement of the facts and issues as correct; (b) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (c) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case." RAP 31(H)(3). We choose to exercise the first option and will take the facts and issues as presented in Paxton's brief as correct. Accordingly, the factual background of this case as Paxton presents it is summarized herein.
Kentucky Rules of Appellate Procedure.
Hammond formerly worked as a television news reporter in Wichita, Kansas, for a station unrelated to Paxton. On April 19, 1992, Hammond's chair broke and caused her to drop six inches. Hammond suffered a compression injury to her lower back as a result. She received treatment there and continued to work.
In 1994, Hammond moved to Kentucky and began working for Paxton. She transferred her medical treatment to Dr. John Noonan in Paducah, Kentucky. In 1994, Dr. Noonan ordered a PT scan which revealed mild lumbar spine degeneration. He did not believe surgery was required and continued to treat Hammond.
In 1996, Hammond slipped - but did not fall - on a floor at work which had just been waxed. Hammond reported this incident to Paxton and filed a First Report of Injury. Dr. Noonan again performed a scan, but it showed no change. Dr. Noonan made no changes to Hammond's course of treatment. In 1997, Hammond slipped when exiting a hot tub at physical therapy and landed on her bottom. Hammond did not file a first report of injury for this event.
Per Kentucky Revised Statute (KRS) 342.038, all employers subject to Kentucky's workers' compensation statutes must keep a record of all injuries which employees incur in the course of their employment. Under KRS 342.038(3), "[e]very employer subject to this chapter shall report to its workers' compensation insurance carrier or the party responsible for the payment of workers' compensation benefits any work-related injury or disease or alleged work-related injury or disease within three (3) working days of receiving notification of the incident or alleged incident."
Hammond left Paxton in 1997, eventually settling in Arizona. Dr. Asim Khan of Arizona Pain and Spine became Hammond's designated physician. Dr. Khan administered a series of epidural steroid injections. Hammond also received counseling from Pat Bogash for anger, depression, and anxiety resulting from chronic pain; Hammond claimed this chronic pain resulted from the 1992 injury.
Paxton filed a petition to reopen to assert a medical fee dispute on July 13, 2016, to which Paxton, Hammond, and Dr. Khan were parties. ALJ Weatherby entered an opinion and order on April 10, 2017, wherein ALJ Weatherby determined Hammond's epidural injections and counseling were compensable.
No longer wanting to be treated by either Bogash or Dr. Khan, Hammond discontinued these treatments and began looking for new treatments and a new designated physician. Hammond continued her medications. Hammond also referred herself to the Ketamine Clinic of Arizona and submitted both her mileage and bills for treatment for reimbursement. This prompted the obligor to initiate an investigation as to whether these charges were compensable.
While this investigation was pending, Dr. William Stevens of Orthoarizona became Hammond's designated physician. Dr. Stevens, an orthopedic surgeon, encouraged Hammond to continue her healthy lifestyle. He did not provide Hammond with any treatment and released her from his care but told her to return if her symptoms got any worse. Hammond left Dr. Stevens and Dr. Chikwendu Nwosu at Stripes Primary Care became her new designated physician. Hammond also began receiving treatment from Christopher Serrone, a nurse practitioner at Stripes.
Paxton initiated a second medical contest on June 6, 2019. Hammond, Paxton, Orthoarizona, and Stripes were parties to this contest. At issue in this contest was the compensability of Hammond's course of treatment which included a gym membership, yoga classes, acupuncture, behavioral therapy, and massage therapy to manage her pain. On February 15, 2021, ALJ Christina Hajjar entered an opinion in the second medical contest, wherein ALJ Hajjar determined Paxton failed to pay or contest Hammond's medical bills within thirty days of receipt. For that reason, ALJ Hajjar did not confront the merits of the medical contest. ALJ Hajjar denied Paxton's subsequent petition for reconsideration, which the Board affirmed on August 13, 2021.
Paxton filed a third medical contest on February 8, 2022, to challenge whether Hammond's workplace injury caused her pain, whether her injury was related to work, and whether her treatments were reasonable and necessary. Paxton deposed Hammond who said under oath she had developed her care routine herself. She had no referrals for this treatment until seeking referral from Stripes Primary Care. Per office notes from Stripes Primary Care and Dr. Nwosu's deposition, Paxton was already engaging in this routine prior to seeking care from Stripes. Dr. Nwosu also testified no testing was performed to demonstrate Hammond's need for her treatment routine.
A 2021 office note from Stripes reflected that Serrone had obtained a history reflecting Hammond's 1992 injury sustained while working in Wichita. Hammond was given referrals for a gym membership, yoga, and behavioral therapy. Hammond requested Serrone provide her referrals for massage therapy and acupuncture. Dr. Nwosu testified he also received the same history regarding Hammond's 1992 workplace injury. His testimony reflects that Hammond's treatment at Stripes was for her injuries resulting from her 1992 workplace injury. Paxton states the deposition of Dr. Nwosu had to be cut short, and that ALJ Christopher Davis would not afford Paxton additional time to complete it.
ALJ Davis entered his opinion and order on October 22, 2022. He determined the work-relatedness and permanence of Hammond's claim had already been considered by both ALJ Weatherby and ALJ Hajjar and, accordingly, declined to revisit the issue. ALJ Davis noted Paxton had failed to introduce any evidence of a subsequent cause of Hammond's back pain and rejected any degenerative condition as being the cause of this pain; ALJ Davis determined the medical records from Stripes clearly demonstrate Hammond's low back pain was caused by her decades-old injury and that her continued course of treatment was reasonable and necessary. ALJ Davis ordered that Hammond be compensated for an annual gym membership, bimonthly yoga studio fees, ten acupuncture sessions, two massage sessions, and mileage expenses.
Paxton filed a petition for reconsideration, which ALJ Davis denied. Paxton then appealed to the Board, and the Board affirmed ALJ Davis. Paxton now appeals.
ANALYSIS
Paxton first argues the ALJ erred in concluding Hammond's employment and her injuries were causally connected and that the injuries were work-related. As a threshold issue, Paxton challenges the ALJ's application of res judicata to the issues of causation and work-relatedness of Hammond's injury. As the Kentucky Supreme Court explains:
The doctrine of res judicata is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.Yeoman v. Commonwealth, Health Policy Bd., 983 S.W.2d 459, 464 (Ky. 1998) (quoting 46 AmJur 2d § 514). Res judicata is an affirmative defense composed of two subparts: claim preclusion and issue preclusion. Id. at 464-65. For issue preclusion, the version of res judicata applicable to the instant case, to apply, each of the four elements must be met:
First, the issue in the second case must be the same as the issue in the first case. Restatement (Second) of Judgments § 27 (1982). Second, the issue must have been actually litigated[.] Id. Third, even if an issue was actually
litigated in a prior action, issue preclusion will not bar subsequent litigation unless the issue was actually decided in that action. Id. Fourth, for issue preclusion to operate as a bar, the decision on the issue in the prior action must have been necessary to the court's judgment. Id.Id. at 465.
Though Paxton challenges ALJ Davis's application of this doctrine on appeal, we find each element of issue preclusion to be met. The work-relatedness of Hammond's claim, including the 1992 injury's effect on her 1996 and 1997 injuries, was already discussed by previous ALJs. In his April 2017 opinion and order, ALJ Weatherby considered evidence as to the cause of Hammond's ongoing pain and explicitly found Hammond's injury to be work-related. Record (R.) at 337-39. ALJ Weatherby outlined the evidence he considered, including medical evidence related both to Hammond's back injury and her psychiatric treatments. R. at 336-38. ALJ Weatherby explicitly stated he was persuaded by Dr. Khan and found Hammond's ongoing treatment for lower back pain to be causally work-related and compensable. R. at 339. ALJ Weatherby considered evidence in opposition to this conclusion from a Dr. Daniel Wolens; Dr. Wolens performed an involuntary medical examination (IME) of Hammond and opined the reemergence of Hammond's back pain was unrelated to her work events in the 1990s. R. at 336-37.
As for ALJ Hajjar, he did consider Hammond's 1996 and 1997 injuries. R. at 2158. ALJ Hajjar discussed testimony and other evidence regarding the connection between Hammond's 1992 injury, her 1996 and 1997 injuries, and her current pain. R. at 2166-71. ALJ Hajjar discussed Hammond's deposition, including Hammond's description of the 1996 and 1997 injuries and their connection to the 1992 injury. R. at 2167. And ALJ Hajjar held that, even if res judicata did not bar consideration of the issue, Hammond's testimony and the evidence she submitted corroborate the work-relatedness of the 1996 and 1997 incidents. R. at 2172.
Issue preclusion applies to the issues of causation and work-relatedness of Hammond's injury. These issues were before ALJ Weatherby and ALJ Hajjar, were actually litigated, were actually decided, and were necessary to their judgment. Because ALJ Davis was not required to reconsider these issues, we will not reconsider them on appeal.
Second, Paxton argues the ALJ erred in determining Paxton did not meet its burden to demonstrate Hammond's treatments were not reasonable and necessary. It argues the opinions of Dr. Thomas, Dr. Crowder, and Dr. Loeb regarding Hammond's treatment for pain demonstrate the treatment was not reasonable or necessary. It also argues the opinions of Dr. Wu and Dr. Butler demonstrate the same regarding Hammond's ongoing psychological treatment.
The ALJ is designated by statute as the factfinder in workers' compensation actions. KRS 342.285(2). "[A]s the fact-finder, the ALJ, not this Court and not the Board, has sole discretion to determine the quality, character, and substance of the evidence." Abbott Lab'ys v. Smith, 205 S.W.3d 249, 253 (Ky. App. 2006) (citing Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999)). Additionally, an ALJ may "believe or [] disbelieve any part of the evidence, regardless of its source." Id. (citing Whitaker, 998 S.W.2d at 481). Despite this wide latitude, an ALJ's finding "that is arbitrary, capricious, or clearly erroneous is subject to reversal on appeal." Jefferson Cnty. Pub. Schools/Jefferson Cnty. Bd. of Educ. v. Stephens, 208 S.W.3d 862, 866 (Ky. 2006). A finding of fact is not clearly erroneous if it is supported by substantial evidence, and substantial evidence constitutes "evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men." Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998) (citations omitted).
The ALJ did not find the opinions of Dr. Thomas, Dr. Crowder, Dr. Loeb, Dr. Wu, or Dr. Butler to be persuasive. He observed that - excepting Dr. Thomas's statement that gym membership and yoga classes are not medical care -these doctors' opinions discussed work-relatedness rather than reasonableness or necessity. However, this is not so. Following an IME, Dr. Crowder opined that no treatment related to the 1996 and 1997 injuries needed to be continued and that Hammond experienced a temporary condition that resolved long ago. Dr. Loeb believed Hammond's injury was so minor that no treatment would be needed within weeks after either the 1992 or 1996 events. Dr. Wu did not believe any evidence existed for any psychological injury to Hammond as a result of the 1996 or 1997 events. Dr. Butler, while acknowledging the usefulness of exercise, believed Hammond's exercise regimen to solely be for her comfort and convenience and not for the relief of any psychological condition. Accordingly, it was inaccurate for the ALJ to determine no doctor other than Dr. Thomas reached any conclusion regarding reasonableness or necessity.
However, this does not mean the ALJ erred in affirming Hammond's award. The ALJ relied upon the opinions and records of Dr. Nwosu, Serrone, and Stripes, as well as Hammond's own testimony. As the ALJ noted, Serrone was of the position that Hammond's massage, acupuncture, gym membership, yoga, and DBT are components of programs to treat Hammond's lower back pain. The ALJ determined, upon review of records from Stripes, that this course of treatment helps Hammond. Again, "the ALJ, not this Court and not the Board, has sole discretion to determine the quality, character, and substance of the evidence[,]" Abbott Lab'ys, 205 S.W.3d at 253, and we will not vacate the ALJ's judgment on this issue solely because he gave more weight to Stripes' records and personnel over other evidence.
Dialectic behavioral therapy.
It is true that, in workers compensation matters, "ALJs are not permitted to rely on lay testimony, personal experience, and inference to make findings that directly conflict with the medical evidence[.]" Kingery v. Sumitomo Electric Wiring, 481 S.W.3d 492, 496 (Ky. 2015) (citing Mengel v. Hawaiian-Tropic Northwest &Cent. Distribs., Inc., 618 S.W.2d 184, 187 (Ky. App. 1981)). "[W]hen the question is one properly within the province of medical experts, the board is not justified in disregarding the medical evidence." Mengel, 618 S.W.2d at 187 (citations omitted). If the ALJ in the present case had solely relied upon Hammond's testimony in direct contravention of Dr. Thomas and company, we would be required to reverse for a lack of substantial evidence. However, because evidence from Serrone and Stripes also support the ALJ's conclusions, we will not usurp his role and reweigh conflicting evidence. Therefore, we will not reverse the ALJ's conclusions regarding reasonableness and necessity of Hammond's treatment.
CONCLUSION
Based on the foregoing, we affirm the Board's June 9, 2023 opinion.
ALL CONCUR.