National Pizza Co. v. Curry, 90-CA-1509-WC
| Decision Date | 01 February 1991 |
| Docket Number | No. 90-CA-1509-WC,90-CA-1509-WC |
| Citation | 802 S.W.2d 949 |
| Parties | NATIONAL PIZZA COMPANY, Appellant, v. Zack S. CURRY; Special Fund; Hon. Walter W. Turner, Jr., Administrative Law Judge; and Workers' Compensation Board of Kentucky, Appellees. |
| Court | Kentucky Court of Appeals |
David H. Neeley, Francis, Kazee & Francis, Prestonsburg, for appellant.
Zack S. Curry, Williamson, W.Va., pro se.
Cathy Utley Costelle, Louisville, for appellee Special Fund.
Walter W. Turner, Jr., Administrative Law Judge, Lexington, pro se.
Before LESTER, C.J., and HOWARD and McDONALD, JJ.
In July, 1988, the appellee, Zack S. Curry, a 30 year old pizza worker, climbed up a broken stepladder, fell off and injured his back. Curry filed a claim with the Workers' Compensation Board (board) and was determined by the Administrative Law Judge (ALJ) to have incurred an appreciable injury and an occupational disability of 20%. The award of benefits, which amounts to $26.66 per week for 425 weeks, was apportioned equally between the appellant/employer, National Pizza Company, and the Special Fund. Additionally, Curry was awarded "such medical, surgical and hospital expenses as may reasonably be required for the treatment of his occupational disability...." It is the award of certain medical expenses which is at issue in this appeal.
Specifically the employer appeals from the board's determination that it is liable for medical expenses incurred by Curry for treatment he obtained from Dr. Diane Shafer, his treating physician. Dr. Shafer, an orthopedic surgeon, caused Curry to be hospitalized for three days where he was treated with hot packs, ultrasound, exercises and drugs. Dr. Shafer saw Curry as an outpatient on a frequent basis from September through November, 1988 (during Curry's period of temporary total disability) and treated him with hot packs, diathermy, a back brace, a TNS unit, pain medication and muscle relaxants. In her deposition the doctor testified that she believed the conservative treatment to be both necessary, reasonable and helpful to Curry. Curry himself testified concerning Dr. Shafer's treatment as follows:
Like I said, when I would take the therapy, that diathermy would help me while I was on it, because I could set up and take it, but after I would get off from it and by the time I'd get back home, I would be worse.
The employer contested the necessity and reasonableness of the treatment before the board. The ALJ found as follows:
8. With respect to the reasonableness and necessity of medical expenses incurred for diathermy and medications prescribed by Dr. Shafer, both Drs. Goodman and Scott opined as of their evaluation of January, 1989, that the plaintiff required no future extensive treatment. However, neither of the defendant-employer's witnesses addresses in their testimony the issue of whether the diathermy and prescribed pain relievers were outside of the reasonable course of medical treatment for the plaintiff upon occasions prior to their examinations. In other words, there is no evidence that diathermy is a "black box" technique improving the physician's cash flow and little to enhance the physical well being of the patient. KRS 342.020 permits the plaintiff to choose his physician and by implication the course of treatment prescribed by that physician until the defendant-employer makes some showing of the unreasonableness or non-necessity of the treatment. Plaintiff herein has testified that he obtained at least "temporary relief" through the diathermy. Considering the totality of the circumstances and proof of record, I cannot find the course of treatment at the hands of Dr. Shafer to be unreasonable, thus, her medical charges are compensable.
The employer appealed the issue of the compensability of Dr. Shafer's medical bills. The board determined that it is the employer who must "initiate consideration of the reasonableness of medical expenses" before the board and that the employer, as the "complaining party," has the burden of proof. W...
To continue reading
Request your trial
-
University of Louisville v. Matz, No. 2009-CA-1004-WC (Ky. App. 11/13/2009)
...of showing that the proposed medical treatment it is contesting is not reasonable, necessary, or productive. National Pizza Co., v. Curry, 802 S.W.2d 949, 951 (Ky. App. 1991). The employer points to Dr. Frazin's testimony to support its assertion that the use of Fentanyl and MS-Contin are u......
-
Kroger Company v. Smith, No. 2007-CA-002116-WC (Ky. App. 7/25/2008)
...947 S.W.2d 421 (Ky. App. 1997); R.J. Corman Railroad Construction v. Haddix, 864 S.W.2d 915 (Ky. 1993) and National Pizza Co. v. Curry, 802 S.W.2d 949 (Ky. App. 1991). Therefore, Kroger had the burden of establishing the medical expenses were unreasonable, unnecessary or unrelated to Smith'......
-
Helton v. Inn
...any reasonable and necessary medical treatment for relief whether or not the treatment has any curative effect." National Pizza Co. v. Curry, 802 S.W.2d 949, 951 (Ky. App. 1991). Sleep Inn does not contest Helton's right to receive any future medical care with respect to her work-related di......
-
Fei Installation, Inc. v. Williams, 2006-SC-0261-WC.
...expense would be compensable. Under 803 KAR 25:012; Mitee Enterprises v. Yates, 865 S.W.2d 654 (Ky.1993); and National Pizza Co. v. Curry, 802 S.W.2d 949 (Ky.App.1991), an employer is free to move to reopen an award to contest the reasonableness or necessity of any medical treatment and als......