Castle v. Haney

• Decision Date: 12 April 2013
• Docket Number: NO. 2013-CA-000058-WC,2013-CA-000058-WC
• Parties: WHITE CASTLE APPELLANT v. TINA HANEY; HON. ROBERT SWISHER, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
• Court: Kentucky Court of Appeals

WHITE CASTLE APPELLANT

v.TINA HANEY; HON. ROBERT SWISHER, ADMINISTRATIVE LAW JUDGE;AND WORKERS' COMPENSATION BOARD APPELLEES

NO. 2013-CA-000058-WC

Commonwealth of Kentucky Court of Appeals

RENDERED: APRIL 12, 2013

NOT TO BE PUBLISHED

PETITION FOR REVIEW OF A DECISION

OF THE WORKERS' COMPENSATION BOARD

ACTION NO. WC-00-00542

OPINION

AFFIRMING

BEFORE: ACREE, CHIEF JUDGE; DIXON AND THOMPSON, JUDGES.

ACREE, CHIEF JUDGE: White Castle appeals from an order of the Workers' Compensation Board which affirmed an Administrative Law Judge's (ALJ) order finding Tina Haney's peripheral neuropathy was caused by a work-related injury. We affirm.

Haney was injured in a work-related motor vehicle accident in October 1999. The parties later entered into a settlement agreement which determined that as a result of the accident, Haney had sustained a cerebral concussion, a closed head injury, lacerations, and broken bones. She received benefits on the basis of total permanent disability.

The employer moved to reopen the claim to dispute a medical fee in October of 2011. White Castle contended Haney's complaints of reflex sympathetic dystrophy (RSD), low back pain, and peripheral neuropathy were not caused by the work-related injury, and therefore continued treatment of these ailments was not compensable.

Following an evidentiary hearing, the ALJ concluded that Haney was not being treated for RSD or low back pain. The employer's motion was overruled as moot to the extent that it concerned these two ailments.

With respect to Haney's peripheral neuropathy, the ALJ relied upon the testimony of her treating physician and treatment records to conclude that the disorder was caused by the work-related motor vehicle accident and was therefore compensable. The ALJ also determined that treatment of Haney's peripheral edema was compensable because it was necessary to alleviate the symptoms from the work-related peripheral neuropathy. The ALJ was not persuaded by the deposition testimony of the employer's physician who opined that peripheral neuropathy could not be caused by the trauma Haney suffered as a result of the motor vehicle accident.

Certain of Haney's prescription medications were also found to be necessary to treat her work-related injuries, but the ALJ sustained White Castle's objection to the compensability of medication for restless leg syndrome.

The Board affirmed the ALJ's order and this appeal followed. The bases of appeal are twofold but related: 1) the ALJ should have disregarded the testimony of Haney's treating physician because it was not supported by a sound scientific basis; and 2) the finding that Haney's peripheral neuropathy was caused by the work-related accident was not supported by substantial evidence.

White Castle first urges reversal because the ALJ's reliance on the testimony of Haney's treating physician, Dr. Leon Burton, was improper as it did not satisfy the Daubert test. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). More specifically, he believes Dr. Burton's testimony was not supported by scientific evidence.

This argument was not preserved. Our review of the record reveals that the question was raised for the first time in the Petition for Review presented to this Court. Breeding v. Colonial Coal Co., 975 S.W.2d 914, 916 (Ky. 1998) ("Any party who seeks to appeal a decision of the Board to the court system must have preserved an assertion of error by having raised it first to the Board."); see also Scott v. AEP Kentucky Coals, LLC, 196 S.W.3d 24, 26 (Ky. App. 2006) (an alleged error which had not been raised prior to appeal to this court was unpreserved; it was subject to the ordinary standard of review only because it concerned a...