Sacerio v. Bakery Chef

Full title: ABEL SACERIO APPELLANT v. BAKERY CHEF, a/k/a RALCORP HOLDINGS; VASUDEVA G…

Court: Commonwealth of Kentucky Court of Appeals

Date published: Mar 22, 2013

NO. 2012-CA-001665-WC (Ky. Ct. App. Mar. 22, 2013)

Opinion

NO. 2012-CA-001665-WC

03-22-2013

ABEL SACERIO APPELLANT v. BAKERY CHEF, a/k/a RALCORP HOLDINGS; VASUDEVA G. IYER, M.D.; NORTON HEALTHCARE; MILAGROS RIVERA, M.D.; NORTON LEATHERMAN SPINE CENTER; PAIN MANAGEMENT KENTUCKY, P.S.C.; JEWISH HOSPITAL HEALTHCARE SERVICES, INC.; AND HONORABLE CHRIS DAVIS, ADMINISTRATIVE LAW JUDGE APPELLEES

BRIEF FOR APPELLANT: Douglas M. Lamb Louisville, Kentucky BRIEF FOR APPELLEE, BAKERY CHEF, INC., a/k/a RALCORP HOLDINGS: J. Christopher Hopgood Henderson, Kentucky

LAMBERT

NOT TO BE PUBLISHED

PETITION FOR REVIEW OF A DECISION

OF THE WORKERS' COMPENSATION BOARD

ACTION NO. WC-07-75713

OPINION

AFFIRMING

BEFORE: ACREE, CHIEF JUDGE; DIXON AND LAMBERT, JUDGES. LAMBERT, JUDGE: Abel Sacerio has petitioned this Court for review from a decision of the Workers' Compensation Board ("the Board") affirming the denial of compensation for certain medical treatments in a post-award medical fee dispute. Sacerio argues that: (1) he is entitled to treatment by the physician of his choice; (2) the Administrative Law Judge ("ALJ") should not have limited future treatment based on "crystal ball" projections; and (3) use of the Form 113 physician was not required. We affirm.

On September 19, 2007, Sacerio sustained a work-related lower back injury while employed by Bakery Chef, Inc., a/k/a Ralcorp Holdings ("Ralcorp"). Subsequently, Sacerio and Ralcorp entered into a settlement agreement under which Sacerio received a weekly award of $44.97 for 425 weeks. The settlement was based upon a 5% impairment rating assessed by Dr. Warren J. Bilkey. The settlement agreement was approved by an ALJ on March 12, 2009.

Following his release from the care of Dr. Bilkey in 2009, Sacerio received treatment from Dr. Millagros Rivera. Dr. Rivera ordered a lumbar MRI and referred Sacerio for pain management evaluation. Dr. Rivera also recommended a narcotic prescription. Following the MRI, Sacerio was examined by Dr. Charles H. Crawford, III, an orthopedic surgeon. Dr. Crawford recommended an EMG test, which was performed by Dr. Vasudeva G. Iyer, a neurosurgeon. Dr. Arul Verghis performed a pain management consultation. Sacerio returned to treatment with Dr. Bilkey after Dr. Rivera moved away. In March 2010, Sacerio received further treatment at the Norton Hospital Emergency Room after complaining of pain.

On June 1, 2010, Ralcorp filed a motion to reopen, a medical fee dispute, and a motion to join additional parties. In its motion, Ralcorp alleged that Sacerio's treatment with narcotics, treatment at the emergency room, and referral to a neurosurgeon were not reasonably necessary. Ralcorp based its allegations upon the reports of Dr. Ellen Ballard and Dr. Terry Troutt. Dr. Ballard performed two independent medical evaluations upon Sacerio. Dr. Troutt performed a records review. The Chief ALJ reopened the claim by order entered July 1, 2010, and the claim was assigned to an ALJ for further proceedings.

Following a hearing on November 21, 2011, the ALJ found that: (1) on-going treatment with narcotics was not reasonably necessary; (2) the emergency room visit on March 23, 2010, was not reasonably necessary; and (3) the disputed MRI, EMG, and neurosurgical referral were not reasonably necessary. Accordingly, the ALJ resolved the medical fee dispute in favor of Ralcorp, with the exception of the referral to the pain management specialist. Sacerio filed a motion for reconsideration, which the ALJ denied. The Board affirmed. This appeal followed.

Sacerio first argues that he is entitled to treatment by the physician of his choice. He argues that the ALJ has impermissibly micromanaged his medical care.

In a post-award medical fee dispute, the burden of proof to demonstrate that the medical treatment is unreasonable or unnecessary is with the employer, while the burden remains with the claimant concerning questions pertaining to work-relatedness or causation of the condition. See Kentucky Revised Statutes (KRS) 342.020(1); Mitee Enterprises v. Yates, 865 S.W.2d 654, 655 (Ky. 1993). When the party bearing the burden of proof has prevailed, the issue on appeal is whether the ALJ's decision was supported by substantial evidence. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986). Substantial evidence is "evidence of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable men." O'Nan v. Ecklar Moore Exp., Inc., 339 S.W.2d 466, 468 (Ky. 1960) (citations omitted).

As the fact-finder, the ALJ had the sole authority to determine the weight, credibility, substance and inferences to be drawn from the evidence. Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993). The fact-finder also has the sole authority to judge the weight to be afforded to the testimony of a particular witness. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46, 47 (Ky. 1974). Where the evidence is conflicting, the fact-finder may choose whom or what to believe. Pruitt v. Bugg Bros., 547 S.W.2d 123, 125 (Ky. 1977). The ALJ, as fact-finder, may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same adversary party's total proof. Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky. 2000). See also KRS 342.285. Mere evidence contrary to the ALJ's decision is not adequate to require reversal on appeal. Whittaker v. Rowland, 998 S.W.2d 479, 482 (Ky. 1999).

KRS 342.290 limits the scope of review by the Court of Appeals to that of the Board and also to errors of law arising before the Board. Whittaker, 998 S.W.2d at 482. Our review is to correct the Board only where "the Court perceives the Board has 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).

In Square D Co. v. Tipton, 862 S.W.2d at 309-10, the Supreme Court of Kentucky stated:

While the injured worker must be given great latitude in selecting the physician and treatment appropriate to her case, the worker's freedom of choice is not unfettered. KRS 342.020(3) indicates that the legislature did not intend to require an employer to pay for medical expenses which result from treatment that does not provide "reasonable benefit" to the injured worker. An employer may not rely on this section simply because he is dissatisfied with the worker's choice, for example, or because the course of treatment is lengthy, costly, or will not provide a complete cure. We believe, however, that this section relieves an employer of the obligation to pay for treatments or procedures that, regardless of the competence of the treating physician, are shown to be unproductive or outside the type of treatment generally accepted by the medical profession as reasonable in the injured worker's particular case. We also believe that such decisions should be made by the ALJs based on the particular facts and circumstances of each case, so long as there is substantial evidence to support the decision.

In the present case, the ALJ specifically relied upon the evidence presented by Dr. Ballard and Dr. Troutt. Dr. Ballard stated that there was no reason for Sacerio to continue taking narcotic medications. She further noted that the emergency room visit was precipitated by a lack of narcotic medication rather than an exacerbation of his work-related injury. Dr. Ballard stated that referrals to a pain management physician or an orthopedic surgeon were not reasonable or medically necessary. She explicitly stated her opinion that Sacerio did not require further treatment. Dr. Troutt likewise stated that the continuing use of narcotics was not reasonable or medically necessary because the Kentucky ODG (official disability guidelines) guidelines do not support the long-term use of narcotics for subjective low back pain. Dr. Troutt opined that the referral to a neurosurgeon was neither reasonable nor medically necessary.

We conclude that the opinions of Dr. Ballard and Dr. Troutt constitute substantial evidence in support of the ALJ's findings. As stated above, the existence of contrary evidence is insufficient to overturn a decision on appeal when the decision is supported by substantial evidence.

Next, Sacerio argues that the ALJ should not have limited future medical care based on "crystal ball" projections. He cites Kroger v. Ligon, 338 S.W.3d 269 (Ky. 2011), in support of this argument. In Ligon, the Supreme Court stated:

KRS 342.020(1) entitles a worker to reasonable and necessary medical treatment "at the time of the injury and thereafter during disability," without regard to the duration of income benefits. FEI Installation, Inc. v. Williams concerned whether KRS 342.020(1) entitles a worker who reaches maximum medical improvement with no permanent impairment rating to future medical benefits. The court determined that an injured worker is entitled to future medical benefits for so long as the injury causes impairment as defined on page 2 of the American Medical Association's Guides to the
Evaluation of Permanent Impairment (Guides), Fifth Edition. Impairment, as so defined, means "a loss, loss of use, or derangement of any body part, organ system, or organ function."
The Williams court explained that the presence of impairment demonstrates a harmful change in the human organism and "disability," regardless of whether the impairment and resulting disability are severe enough to warrant a permanent impairment rating or permanent income benefits. The Williams court acknowledged, however, that an injury may be temporary and warrant only temporary medical benefits. Thus, in Mullins v. Catron Construction/Catron Interior Systems, Inc., the court reaffirmed an ALJ's decision to deny future medical benefits to a worker who suffered a temporary exacerbation of his pre-existing condition and failed to show the need for medical treatment after the date he reached MMI.

Id. at 273-74.

Contrary to Sacerio's assertion, the ALJ did not foreclose the possibility of future medical benefits. The ALJ stated:

Finally, however, it is not my intention to find the plaintiff has no work-related, on-going pain. I simply find the above treatment is unnecessary. I believe that a referral to a pain management specialist in order to develop a more appropriate treatment plan for him is an excellent idea.

The ALJ simply found the specific treatments at issue in this case to be unnecessary. As stated above, these findings were supported by substantial evidence.

Finally, Sacerio argues that the use of the Form 113 physician was not required. Pursuant to 803 Kentucky Administrative Regulations (KAR) 25:010, § 13(14), "only contested issues shall be the subject of further proceedings" following a benefit review conference. This argument was raised for the first time on appeal to the Board, and the Board properly declined to address it. Accordingly, we hold that this argument is unpreserved for review and decline to address it further.

For the foregoing reasons, the decision of the Workers' Compensation Board is affirmed.

ALL CONCUR. BRIEF FOR APPELLANT: Douglas M. Lamb
Louisville, Kentucky
BRIEF FOR APPELLEE, BAKERY
CHEF, INC., a/k/a RALCORP
HOLDINGS:
J. Christopher Hopgood
Henderson, Kentucky