Owensboro Medical Health Systems v. Renfrow, No. 2006-CA-000882-WC (Ky. App. 4/6/2007)
| Decision Date | 06 April 2007 |
| Docket Number | No. 2006-CA-000882-WC.,2006-CA-000882-WC. |
| Parties | OWENSBORO MEDICAL HEALTH SYSTEMS, Appellant v. Linda S. Moseley RENFROW; Hon. A. Thomas Davis, Administrative Law Judge; and Workers' Compensation Board, Appellees. |
| Court | Kentucky Court of Appeals |
John C. Morton, Kurt R. Denton, Henderson, Kentucky, Brief for Appellant.
Linda S. Moseley Renfrow, Russ Wilkey, Owensboro, Kentucky, Brief for Appellee.
Before: TAYLOR and WINE, Judges; BUCKINGHAM,1 Senior Judge.
Before: GARDNER, Chairman, STANLEY and YOUNG, Members.
Owensboro Medical Health Systems2 petitions for review of an opinion of the Workers' Compensation Board that affirmed a decision by an administrative law judge (ALJ) awarding Linda S. Moseley Renfrow permanent total disability benefits and granting her motion for payment of benefits pending appeal. Owensboro raises a number of issues by arguing that the ALJ clearly ignored uncontradicted evidence on Renfrow's ability to return to work, that the ALJ erred in finding that Renfrow's current disability was solely caused by an October 2001 incident while she was employed by Owensboro, and that the ALJ erred by failing to reduce Renfrow's impairment rating and award on the basis of a pre-existing active impairment related to prior back condition and spine surgery. Owensboro also contends that Renfrow did not present sufficient evidence to justify receipt of benefits during the pendency of this appeal. For the reasons stated below, we affirm.
The duty of this court is to correct the Board only where it has overlooked or misconstrued controlling statutes or case precedent, or has committed an error in assessing the evidence that is so flagrant as to cause gross injustice. Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992); Phoenix Manufacturing Co. v. Johnson, 69 S.W.3d 64, 67 (Ky. 2001); Combs v. Kentucky River Dist. Health Dep't., 194 S.W.3d 823, 825 (Ky. App. 2006). After reviewing the record, the law, and the arguments of counsel, we have concluded that this court could not improve on the well-written opinion of the Board. Inasmuch as we believe the Board adequately addressed all of the issues, did not overlook or misconstrue controlling precedent, and properly assessed the evidence, we adopt the Board's opinion as our own.
STANLEY, Member. Owensboro Mercy Health Systems ("Owensboro") seeks review of a decision rendered September 13, 2005, by Hon. A. Thomas Davis, Administrative Law Judge ("ALJ"), granting the petitioner, Linda S. Moseley Renfrow ("Renfrow"), an award of permanent total disability benefits. Owensboro also appeals from an order issued October 21, 2005, by the ALJ, denying its petition for reconsideration.
On appeal, Owensboro presents a throng of issues. Owensboro charges that the ALJ misconstrued the opinions of Renfrow's treating neurosurgeon, Dr. William C. Madauss, regarding the respondent's "unrestricted release to return to work" on July 25, 2005, following back surgery on March 7, 2002. Owensboro maintains that despite its efforts to point out the patent error on petition for reconsideration, the ALJ "offered no explanation for disregarding this evidence and it appears the ALJ was simply unaware of the evidence's existence." Owensboro characterizes the evidence from Dr. Madauss as unrebutted and argues the ALJ's "lack of explanation for disregarding the uncontradicted evidence . . . subjects the finding to further scrutiny." Owensboro contends that, "[s]ubstantial evidence requires a finding that the [March 7, 2002] surgery was successful and according to Dr. Madauss, Renfrow fully recovered from the alleged October 3, 2001 injury." Owensboro further argues that Renfrow did not report any increase in pain until she began performing repetitive bending and lifting for a subsequent employer and fell at work on March 20, 2003. Consequently, Owensboro asserts, "[t]he ALJ ignored the great weight of the evidence and erred by ignoring or overlooking the report of Dr. Madauss."
Owensboro also takes issue with the fact that the ALJ relied on the expert medical opinions of Dr. Robert B. Nickerson as the basis for the award and a finding that Renfrow suffered from no pre-existing active disability prior to October 3, 2001, the date of the subject injury in the case sub judice. Owensboro contends the ALJ's reliance upon the report of Dr. Nickerson is "questionable at best."
Owensboro maintains the "overwhelming evidence is that the respondent had a ten percent (10%) to thirteen (13%) impairment as a result of her previous low back surgery." According to Owensboro, "[t]he fact that Dr. Nickerson ignores this vital information places great doubt on the validity of his opinions." Owensboro further argues that although the ALJ referenced the fact that Renfrow has been awarded Social Security disability benefits, he ignored the cumulative reasons the respondent received that award. Owensboro maintains that although the ALJ relied upon medications listed by Dr. Nickerson in part as grounds for finding Renfrow totally disabled, there is no indication that any of these medications are prescribed as treatment for the respondent's lumbar condition.
Owensboro contends that the "reliable, probative and material evidence requires a finding that Renfrow recovered from the alleged October 3, 2001, work-related injury and subsequent surgery." Owensboro further argues as follows:
It is disputed that Renfrow fully recovered from the October 3, 2001 injury after a period of temporary total disability. She was released to return to work without restrictions and it was not until after an injury sustained while working in Tennessee that Renfrow began to complain of pain. Renfrow actually went from no disability before October 3, 2001 to temporary total disability between October 3, 2001 and July 25, 2002, then to no disability. It was only after the injuries sustained while working in Tennessee that Renfrow became occupationally disabled. There is no substantial evidence to support the ALJ's opinion that the alleged October 3, 2001 injury caused Renfrow's total disability. Accordingly, Renfrow is only entitled to an award of permanent partial disability benefits.
Owensboro states that it accepts responsibility for the effects of the permanent partial disability attributable to the October 3, 2001, low back injury and fusion surgery performed by Dr. Madauss. However, the petitioner maintains that a portion of Renfrow's impairment must be "carved out due to the pre-existing active impairment that resulted from a prior discectomy" in February 1999. Owensboro asserts that the "uncontradicted credible evidence is that Renfrow's pre-existing discectomy requires a carving out of a portion of the twenty-three percent (23%) whole body impairment assessed by Dr. Madauss." Owensboro maintains that Dr. Nickerson's opinion with regard to this issue should be discarded because it is not credible. According to Owensboro, "It is undisputed that the pre-existing discectomy resulted in a ten (10) to thirteen percent (13%) pre-existing active impairment." We affirm the decision of the ALJ in toto.
Renfrow was born on June 29, 1950, and has a twelfth grade education. She has in the past held certifications as a physical therapy and chiropractic assistant. Renfrow's past relevant work experience includes employment as a chiropractic assistant, a case worker for the Cabinet for Human Resources, an assistant manger (sic) and bartender, a clerk, and a social worker. Renfrow entered the employ of Owensboro in 2000 as a sterile processing and surgical technician. In sterile processing, Renfrow was required to be "dressed from head to toe in masks and gowns and hoods and everything." Her responsibility included sterilizing and decontaminating hospital instruments, equipment and trays. She was also required to push "great big carts." She testified the carts often contained orthopedic instruments that were quite heavy. This in turn caused the carts to be "heavier than anything [she] ever pushed."
Renfrow's past medical history is significant. Renfrow sustained a prior nonwork-related injury to her back for which she underwent surgery performed by Dr. James Oexmann on February 25, 1999, consisting of a left-sided L4-5 microscope assisted discectomy and foraminotomy. At the time Renfrow was working as a social worker in the Crisis Stabilization Unit for River Valley Behavioral Health ("River Valley"). Renfrow was studying to become a surgical technician at the time. Renfrow stated she worked nights for River Valley and attended school during the day.
Renfrow testified that prior to the 1999 surgery she was experiencing low back pain with radicular pain into her left leg. According to the respondent, following that surgery symptomatically she completely recovered. Renfrow testified:
Q. What type of surgery did you have the first time?
A. I had . . . I guess they call it a laminectomy, and they just went in there . . . I had a little bulge out of the L4-5 area, and they went in there and snipped that off, and I was fine.
Q. Did you get well?
A. Yeah.
Q. Did you have any trouble with that?
A. No.
Q. Not at all?
A. Not at all.
After the first surgery, Renfrow returned to work without restrictions and continued to work for River Valley until leaving that employment to go to work for Owensboro. Renfrow explained, "I quit that job and went to work for [Owensboro] because working in sterile processing would help me with my courses I was taking, learn the instruments because I was going to work in surgery."
Renfrow sustained a second injury to the low back, this time in Owensboro's employ, on October 3, 2001. On that occasion, she was attempting to push a heavy cart loaded with orthopedic instruments through a doorway into the sterilization unit. She could not see the entrance over the...
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