Opinion
NO. 2011-CA-001796-WC
08-31-2012
TRIANGLE PACIFIC INSULATION APPELLANT v. LANA BURTON; DR. MAGDY EL-KALLINY; HON. CAROLINE PITT CLARK, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
Thomas Clarke Donkin Lexington, Kentucky BRIEF FOR APPELLEE, LANA BURTON: Mark D. Knight Somerset, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-97-67499
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; COMBS AND LAMBERT, JUDGES. ACREE, CHIEF JUDGE: At issue is whether substantial evidence supported the finding of an Administrative Law Judge that the surgery recommended by the treating physician of Lana Burton was made necessary by a work-related injury. We find it did and therefore affirm the opinion of the Workers' Compensation Board which affirmed the ALJ's Opinion and Order requiring Burton's former employer to pay for the surgery.
I. Facts and Procedure
Burton was employed by Triangle Pacific Insulation when she was first injured on the job in 1996. This initial accident caused damage to Burton's cervical spine at levels C5/6 and C6/7. Burton's treating physician, Dr. Magdy El-Kalliny, performed three surgeries on her cervical spine, thereby alleviating but not eradicating her symptoms. Burton returned to work in 1998, but was again injured on the job shortly thereafter; the second injury was to her lower back. She has continued to treat with Dr. El-Kalliny throughout the pendency of this action.
Burton filed claims with the Workers' Compensation Board for all of her injuries, and she and Triangle Pacific entered into a settlement agreement in 2004. By the terms of that agreement, Triangle Pacific was required to pay $209,218 to Burton for a 100% permanent disability. Burton reserved her right to obtain future medical treatment and expenses in accordance with Kentucky Revised Statute (KRS) 342.020.
Several years after the 1996 injury and ensuing surgeries, Burton again began to experience increased pain in her neck and shoulder, in addition to migraine headaches and numbness in her right arm. An MRI revealed a bone spur at level C3/4, and Burton was diagnosed with radiculopathy. Dr. El-Kalliny ascribed the new problem to Burton's 1996 work injury and requested pre-approval for surgery to repair it. The proposed surgery would replace the damaged disc with an artificial one.
Triangle Pacific, believing the surgery would not repair a work-related injury, filed a motion to reopen the matter and a medical fee dispute on March 25, 2010. Dr. El-Kalliny was joined as a party to the workers' compensation dispute. The matter was assigned to an Administrative Law Judge (ALJ).
This was neither the first time Dr. El-Kalliny sought pre-approval for the surgery nor the first time Triangle Pacific opposed it. Preapproval was first denied in 2009.
Burton's evidence consisted primarily of her own testimony describing her symptoms and their onset and the opinion of Dr. El-Kalliny. In his letter requesting preapproval, Dr. El-Kalliny opined that the radiculopathy and bone spur were the result of degenerative changes caused by Burton's initial work injury. He incorrectly described the site of the most recent pathology, level C3/4, as adjacent to the site of the 1996 injury, levels C5/6 and C6/7. Abundant medical records documenting Dr. El-Kalliny's treatment of Burton from 1998 to the present were also presented to the ALJ.
Triangle Pacific presented evidence which contradicted Burton's position, in the form of written opinions of two expert witnesses. Dr. Timothy C. Kriss, a neurosurgeon, performed a records review and examined Burton. He opined that the problem with Burton's spine at level C3/4 could not be the product of degeneration which was the result of her 1996 neck injury, in part because C3/4 is not adjacent to the site of injury. Dr. Kriss further attributed some of Burton's symptoms to pathology which had nothing to do with her work injuries. Dr. Daniel Wolens performed only a review of Burton's medical documents and concluded, like Dr. Kriss, that Burton's recent complaints were not the result of her work-related injury because the site of the disc rupture was not adjacent to that of her previous injury.
Thus the ALJ was faced with opposing expert opinions; she found Burton's evidence more reliable and ruled in her favor. In so doing, the ALJ found that "Dr. El-Kalliny has rendered the most accurate and authoritative assessment as to the causation of [Burton's] current cervical condition and the need for surgery, including placement of an artificial disc, and adopts his expert opinions on these issues." (Administrative Record, p. 1490-91). The ALJ was persuaded by Dr. El-Kalliny's assessment that the current impairment was caused by Burton's initial work injury, and found specifically that Dr. El-Kalliny's mistaken characterization of the injury as adjacent to the initial injury was of no consequence. Additionally, the ALJ concluded the results of a 1999 MRI, which demonstrated the first sign of pathology at level C3/4, and its proximity to the initial injury, was good evidence of the longstanding nature of the injury to that site and found it persuasive that the initial injury had caused Burton's subsequent difficulties.
The ALJ denied Triangle Pacific's motion to reopen the matter for resolution of a medical fee dispute and held the employer was required to pay for the surgery proposed by Dr. El-Kalliny.
Following an unsuccessful motion to reconsider, Triangle Pacific appealed the ALJ's ruling to the Board. The Board unanimously concluded the ALJ's opinion was based upon substantial evidence and affirmed it. This appeal ensued.
II. Arguments on appeal
Triangle Pacific argues again that the ALJ's order was not founded upon substantial evidence, and therefore that the Board erroneously affirmed it. The employer takes particular issue with the ALJ's reliance on Dr. El-Kalliny's opinion because C3/4 is not "adjacent" to the site of Burton's original injury; therefore, the employer maintains, the opinions of its consulting doctors that Dr. El-Kalliny's opinion was invalid must prevail. Triangle Pacific further objects to the ALJ's reliance on the 1999 MRI, arguing it does not constitute proof that the 1996 injury gave rise to Burton's current ailments. We are not persuaded.
III. Discussion
In a workers' compensation case, the ALJ's findings of fact must be affirmed if they are supported by substantial evidence. Cepero v. Fabricated Metals Corp., 132 S.W.3d 839, 842 (Ky. 2004). "Substantial evidence means evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable [people]." Id. (citation omitted). "When the agency's decision is supported by substantial evidence, reviewing courts must defer to the agency regardless of whether there is evidence to the contrary. In other words, if there is any evidence of substance to support the agency decision, a reviewing court must defer to that decision because such action could not be arbitrary." Star Run, Inc. v. Com., Environmental and Public Protection Cabinet, 350 S.W.3d 1, 5 (Ky. App. 2010) (citations omitted).
Here, the evidence was adequate to support the ALJ's finding. The opinion of Burton's treating physician that her latest difficulties were caused by the original injury, paired with the relatively early appearance of pathological changes on the 1999 MRI, constitutes substantial evidence. The ALJ was also presented several years of evidence documenting the onset and progression of Burton's maladies. From these, and in conjunction with Dr. El-Kalliny's opinion, the ALJ could assess the origin of the disc problem at level C3/4. The ALJ was not required to find the opinions of the employer's reviewing physicians more persuasive. That the ALJ could permissibly have reached an outcome different than she did does not render a contrary decision invalid. The ALJ simply found the opinions of Triangle Pacific's witnesses less credible than that of Burton's treating physician, as she was entitled to do.
IV. Conclusion
The ALJ's finding that Burton's surgery was necessary to correct damage which was caused by her 1996 work injury was supported by substantial evidence and should not be disturbed. Accordingly, we affirm the opinion of the Workers Compensation Board which affirmed the ALJ's order.
ALL CONCUR. Thomas Clarke Donkin
Lexington, Kentucky
BRIEF FOR APPELLEE, LANA
BURTON:
Mark D. Knight
Somerset, Kentucky