Filed: Feb. 14, 2014
Latest Update: Feb. 14, 2014
Summary: NOT TO BE PUBLISHED OPINION STUMBO, Judge. The appellant, Gayle Jackson, petitions this court to review a decision of the Workers' Compensation Board's (WCB) decision to not reopen her claim and to grant the appellee, Coppage Construction's (Coppage), medical fee dispute. We affirm. Jackson suffered a work related injury to her non-dominant right arm in March of 2006. Jackson was subsequently diagnosed with chronic right arm and hand pain syndrome, and chronic right hand syndrome. Jackson an
Summary: NOT TO BE PUBLISHED OPINION STUMBO, Judge. The appellant, Gayle Jackson, petitions this court to review a decision of the Workers' Compensation Board's (WCB) decision to not reopen her claim and to grant the appellee, Coppage Construction's (Coppage), medical fee dispute. We affirm. Jackson suffered a work related injury to her non-dominant right arm in March of 2006. Jackson was subsequently diagnosed with chronic right arm and hand pain syndrome, and chronic right hand syndrome. Jackson and..
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NOT TO BE PUBLISHED
OPINION
STUMBO, Judge.
The appellant, Gayle Jackson, petitions this court to review a decision of the Workers' Compensation Board's (WCB) decision to not reopen her claim and to grant the appellee, Coppage Construction's (Coppage), medical fee dispute. We affirm.
Jackson suffered a work related injury to her non-dominant right arm in March of 2006. Jackson was subsequently diagnosed with chronic right arm and hand pain syndrome, and chronic right hand syndrome. Jackson and Coppage settled the ensuing worker's compensation claim based on a three percent whole person impairment rating and the settlement was approved by the Honorable Joseph Justice, Administrative Law Judge (ALJ). Approximately seven months later, Jackson moved to reopen her claim pursuant to Kentucky Revised Statute (KRS) 342.125(1)(d), alleging a worsening of her condition from three percent to forty-five percent impairment. Because Jackson met her prima facie burden, her case was assigned to the Honorable Otto Wolff, ALJ. While the litigation to reopen was pending, Coppage filed a medical fee dispute contesting the necessity of medical treatment and medication after July of 2011.
The ALJ denied Jackson's request to reopen and granted Coppage's medical fee dispute because Jackson failed to establish, "by objective medical evidence[,] that she sustained a post-settlement worsening of impairment from the injury; . . . that the change was permanent; and . . . that it caused her to be totally and permanently disabled[.]" Colwell v. Dresser Instrument Div., 217 S.W.3d 213, 219 (Ky. 2006). In response, Jackson filed a petition for reconsideration, which was also denied. Jackson then sought review by the WCB, claiming the ALJ's decision was clearly erroneous. The WBC's review of the ALJ's decision was limited and they were not permitted to substitute their judgment for the ALJ's as to the weight of the evidence. KRS 342.285(2) ("its review [is] limited to determining whether or not: . . . [the decision] is clearly erroneous on the basis of the reliable, probative, and material evidence contained in the whole record; or . . . is arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion"). The board ultimately affirmed both the ALJ's denial of Jackson's request to reopen and Coppage's medical fee dispute. This appeal followed.
"The function of further review of the [WCB] in the Court of Appeals 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). Jackson asks this Court to reopen her claim and remand with instructions for the WCB to award unpaid medical fees and to enter an order acknowledging her increased impairment; however, the record supports the decision of the WCB.
Jackson's argument relies heavily on her complaints regarding the injury. Yet, "[a] patient's complaints of symptoms are clearly not objective medical findings as the term is defined by KRS 342.0011(33)." Gibbs v. Premier Scale Co., 50 S.W.3d 754, 762 (Ky. 2001) (citing KRS 342.0011(33) ("`Objective medical findings' means information gained through direct observation and testing of the patient applying objective or standardized methods[.]")). Furthermore, the record supports the WCB's conclusion that Jackson's impairment had not worsened and was not permanent. Specifically,
Coppage submitted an IME [(independent medical evaluation)] report by Dr. Michael Rozen, an orthopedic surgeon who reviewed Jackson's medical records from the time of her 2006 injury through October 11, 2010. Dr. Rozen disagreed with the diagnosis of RSD [(reflex sympathetic dystrophy)], finding no objective criteria to support this conclusion. He opined Jackson's 2006 accident resulted only in soft tissue contusions which had resolved well before his 2010 evaluation. He found no permanent functional impairment, and concluded Jackson had reached maximum medical improvement ("MMI").
Coppage also presented an IME report by Dr. Joseph Zerga, a neurologist. Dr. Zerga agreed with Dr. Rozen there were no objective findings to support a specific diagnosis. He also agreed Jackson had reached MMI, and assessed a 3% whole person impairment attributable to the 2006 injury. Dr. Zerga challenged Dr. Lutz's assessment as based solely on Jackson's substantive complaints and not on objective findings or clinical results. In a supplemental report apparently elicited in response to Dr. Rissover's diagnosis of complex regional pain syndrome, Dr. Zerga more specifically concluded Jackson "does not come close to a diagnosis of complex regional pain syndrome."
Finally, Coppage entered an opinion letter consigned by Drs. Christopher Bringham and Craig Uejo dated January 17, 2012. Upon review of Jackson's medical records through January 17, 2012, they noted a lack of objective evidence or clinical findings to support any impairment rating or even a diagnosis. They assigned a zero percent impairment rating.
Jackson v. Coppage Const., WC-2006-91520 (Aug. 8, 2013). The WCB also noted that Jackson's argument regarding the fee dispute was not supported by objective medical findings. Furthermore, the doctor who prescribed the medication in question was no longer Jackson's treating physician.
In light of this evidence, we are unable to say that the WCB committed an error so grave as to cause gross injustice and their decision not to reopen Jackson's case and to grant Coppage's medical fee dispute is affirmed.
ALL CONCUR.
