Square D Co. v. Tipton

• Decision Date: 01 July 1993
• Docket Number: No. 92-SC-743-WC,92-SC-743-WC
• Citation: 862 S.W.2d 308
• Parties: SQUARE D COMPANY, Appellant, v. Bertha L. TIPTON; Special Fund; Donna H. Terry, Administrative Law Judge; and Workers' Compensation Board, Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 308

862 S.W.2d 308

SQUARE D COMPANY, Appellant, v. Bertha L. TIPTON; Special Fund; Donna H. Terry,

Administrative Law Judge; and Workers'

Compensation Board, Appellees.

No. 92-SC-743-WC.

Supreme Court of Kentucky.

July 1, 1993.

Rehearing Denied Oct. 28, 1993.

Mark J. Hinkel, Landrum & Shouse, Lexington, for appellant.

Mark A. Sipek, Louisville, for appellee Tipton.

David Randall Allen, John E. Stephenson, Louisville, for appellee Special Fund.

OPINION OF THE COURT

This case concerns the standard by which an employer must prove that a medical treatment for which an injured worker seeks compensation benefits is not reasonable or is not necessary for the cure and relief of the effects of the injury. KRS 342.020.

On February 18, 1986, claimant, an assembly line worker, left work due to pain in her right wrist and sought medical attention. During the next 15 months, she was placed on light duty, the pain increased, and her right elbow and shoulder became affected. Eventually, her left shoulder also became painful. During this time she was paid temporary, total disability benefits for two periods, totalling approximately 3 1/2 months. Then, on May 14, 1987, she quit working altogether. Her employer paid voluntary benefits until April 12, 1989.

Claimant was treated by a number of physicians and a chiropractor and began consulting Dr. E. Atasoy, a hand surgeon, in February, 1987, before she quit working. Dr. Atasoy diagnosed thoracic outlet compression, radial tunnel compression, and radial epicondylitis. X-rays were unremarkable, and nerve conduction studies were normal. In June, 1987, he performed a radial tunnel release, which claimant testified relieved much of the pain in her elbow. Claimant received scalene muscle injections on January 29, 1988, and on February 13, 1988, which failed to relieve the wrist and shoulder problems. Dr. Atasoy explained that when the thoracic outlet space is compressed, the nerves which pass through that area can become entrapped, causing pain. In April, 1988, he performed a right, first rib resection, a procedure which involves removing the rib and some muscle tissue, in an attempt to relieve claimant's right wrist and shoulder symptoms. In July, 1988, claimant was given an injection of cortisone for wrist discomfort. Claimant testified that, while her neck movement was improved by the surgery, her wrist and shoulder pain have remained unchanged.

Finally, in March, 1989, Dr. Atasoy recommended that claimant undergo a scalenectomy, the surgical removal of the scalene muscle in the right side of her neck. The goal of the procedure was to decompress the nerves and blood vessels in the thoracic outlet and to thereby relieve claimant's continuing symptoms. When her employer's insurance company refused to pay for the proposed procedure and, on April 12, 1989, stopped paying voluntary benefits, the instant claim ensued.

The ALJ reviewed all of the medical evidence and concluded that the more persuasive testimony established that the scalenectomy was neither reasonable nor necessary for the cure and relief of claimant's condition as required by KRS 342.020. Claimant was awarded a 60% occupational disability benefit. The decision was affirmed by the Workers' Compensation Board (Board).

The Court of Appeals reversed, however, because it believed that the testimony of each of the three doctors who testified for the defense was flawed. The Court also held that "the proper test for reasonableness is whether a competent physician and an informed patient may reasonably believe that the benefits of the proposed procedure are such as to outweigh the risks."

We have considered each of the three "flaws" in the medical evidence cited by the Court of Appeals. However, after reviewing the evidence in its entirety and the opinion of the ALJ, we believe that the Court of Appeals usurped the role of the fact finder regarding both the facts and the inferences to be drawn from the medical evidence. The ALJ, as the finder of fact, and not the reviewing court, has the sole authority to determine the quality, character, and substance of the evidence. Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418 (1985). Where, as here, the medical evidence is conflicting, the question of which evidence to believe is the exclusive province of the ALJ. Pruitt v. Bugg Brothers, Ky., 547 S.W.2d 123 (1977).

We also disagree regarding the standard by which KRS 342.020 requires an ALJ to determine the compensability of a medical procedure or treatment. KRS 342.020(1) allows a worker to choose her own physician and to have whatever medical treatment is reasonably necessary for the cure and/or relief of her injury. The burden of proving that a treatment is unreasonable is on the employer. National Pizza Co. v. Curry, Ky.App., 802 S.W.2d 949 (1991). 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 National Pizza, supra, cited by the court, the disputed treatment had already been performed. While the treatment appeared to provide the worker with only limited relief, the employer was required to pay for it because the worker had testified that it provided some relief; whereas, the employer had introduced no evidence that the treatment was not considered by the medical profession to be a reasonable course of treatment for the worker's condition and no evidence that the treatment was ineffective.

In the instant case, the...