Finke v. Comair, Inc.

489 S.W.3d 242, 2016 WL 1719311, 2016 Ky. App. LEXIS 63
CourtCourt of Appeals of Kentucky
DecidedApril 29, 2016
DocketNO. 2014-CA-000624-WC
StatusPublished
Cited by1 cases

This text of 489 S.W.3d 242 (Finke v. Comair, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Finke v. Comair, Inc., 489 S.W.3d 242, 2016 WL 1719311, 2016 Ky. App. LEXIS 63 (Ky. Ct. App. 2016).

Opinion

OPINION

JONES, JUDGE:

The Appellant, Teresa Finke, has asked us to review the Workers’ Compensation Board’s March 12, 2014, Opinion. Therein, the Board affirmed the Administrative Law Judge (“ALJ”). Specifically, the Board held, that .Finke did. not have an unfettered right to have her father present during an Independent Medical Examination (“IME”), and that the ALJ did not abuse his discretion in determining that Finke failed to present a “compelling reason” why she could not submit to the [244]*244examination without her father present. The Board also upheld the ALJ’s decision that Finke was not entitled to receive any benefits during the time of her noncompliance. Having reviewed the record, we affirm.

I. BACKGROUND

Finke sustained work-related injuries to her right hand and shoulder on May 26, 2007, while working as a full-time flight attendant for Comair. Finke was briefly taken off work. Finke returned to work, part-time, but was taken off work again in May of 2011, when she began having pain in her right shoulder. Eventually, Finke came under the care of Dr. Forest Heis for her right shoulder condition. Finke underwent right shoulder surgery in September 2011.

Prior to her right shoulder surgery, there was a dispute regarding the com-pensability of Finke’s right shoulder condition and proposed right shoulder surgery. On September 23, 2009, at the request of Comair, Finke appeared before Dr. Ronald Burgess for an IME. Dr. Burgess, however, refused to perform the IME because Finke would not enter the examining room without her father present.

On September 28, 2009, Finke filed a motion seeking an extension of time in which to complete her proof. On October 23, 2009, Comair filed a response to Finke’s motion for an' extension of time, noting it had no objection. However, Co-mair also filed a motion for costs, a motion to compel Finke to appear for an IME, and a motion to suspend any potential benefits until she appeared for an IME. Comair asserted that it had scheduled an IME with Dr. Ronald Burgess on September 23, 2009, and that Finke appeared, but refused to fill out the form Dr. Burgess requires of his examinees or to go into the examination room without her father. Co-mair stated that Dr. Burgess does not permit any other individuals to be present in the examination room. As such, Dr. Burgess did not examine Finke, and Co-mair was forced to pay Dr. Burgess’s $1,350.00 fee for the canceled examination. Specifically, Comair moved for costs to be assessed against Finke and requested an order compelling Finke to appear at a subsequent IME with Dr. Burgess. Co-mair argued to allow Finke to refuse to see Dr. Burgess effectively permitted her to dictate its medical expert. Comair also requested any potential benefits be suspended until Finke agreed to the IME by Dr. Burgess.

On October 30, 2009, Finke filed a response to Comair’s motion. Finke admitted that she appeared for the IME at Dr. Burgess’s office, but refused to fill out the questionnaire regarding her medical history and the work injury because she did not feel comfortable providing answers to the questionnaire without counsel present or an attorney reviewing the document and her answers. Finke “asserted the questionnaire was akin to interrogatories utilized by Dr. Burgess to file a report against her interest.” Finke also admitted that she refused to be examined by Dr. Burgess without her father being present. Except for examinations by her treating physician, Finke did not wish to be examined by any other physician without her husband or father being present.

On December 8, 2009, the ALJ entered an order granting the parties additional time to take proof and passed consideration of Comair’s motion for costs, but sustained Comair’s motion to compel Finke to appear for an IME with Dr. Burgess and follow his protocol. Finke timely filed an appeal with the Board on December 30, 2009. The Board, however, dismissed Finke’s appeal finding the ALJ’s order [245]*245was not final and appealable. The case was remanded back to the ALJ.

Following additional pleadings by the parties and a May 12, 2010, telephone conference, the ALJ on May 13, 2010, ordered that the December 8, 2009, order be set aside and stated that Finke shall not be compelled to attend an IME with Dr. Burgess. Thereafter, at the request of Co-mair, Finke was to be examined by Dr. Michael Best who permitted Finke to have her father present during the IME.

On June 24, 2011, Comair filed the June 7, 2011, IME report, medical records review, and functional capacity evaluation of Dr. Michael Best. Comair also introduced Dr. Best’s June 21, 2011, deposition testimony transcript. Dr. Best testified he had no problem permitting Finke’s father to be present and would allow a spouse or parent to be present during the examination. He indicated in 98% of the examinations, family members are present.

By order dated December 21, 2011, the ALJ sustained the motion to bifurcate Finke’s right shoulder claim and ordered that a formal hearing be held on January 19, 2012.

The issues to be determined by the ALJ during the January 19, 2012, evidentiary hearing included Comair’s entitlement to reimbursement for no-show fees and the suspension of Finke’s benefits during the time there was a dispute' concerning the IME.

At the hearing, Finke testified she was seen by Dr. Warren Bilkey and Dr. Best. Both doctors allowed her father to be present during the examinations. Dr. Burgess did not want to permit her father to be present during his scheduled IME of Finke. Finke testified that she did not feel comfortable without her father, husband, or someone else with her during the IME. Finke stated that she takes this position concerning any doctor who is not her treating physician.

On March 19, 2012, the ALJ entered an Interlocutory Opinion, Award, and Order. The ALJ found Finke’s right shoulder condition and resulting surgery were work-related and compensable. The ALJ awarded Temporary Total Disability (“TTD”) benefits from May 1, 2011, until such time Finke reached Maximum Medical Improvement (“MMI”) or was capable of returning to her regular customary work. The ALJ denied Comair’s request for no-show fees and its motion to suspend benefits, finding:

Having considered the matter and each party’s arguments, the Administrative Law Judge first concludes plaintiff did not unreasonable [sic] fail to present for and cooperate with her scheduled examination. She appeared at the appropriate time and she wanted her father to be able to attend her examination, which Dr. Burgess refused. While plaintiffs insistence on having her father present may be unusual, it does not render the request unreasonable. Indeed, both Dr. Bilkey and Dr. Best allowed plaintiffs father to attend their examinations. Accordingly, the Administrative Law Judge is not persuaded plaintiff acted unreasonably in insisting on having her father present, particularly when this was the first time her father’s attendance was an issue with any examining physician. Because plaintiff was not unreasonable in her actions, she is not responsible for any no-show fees and her benefits shall not be suspended or forfeited for the period between Dr. Burgess’ scheduled examination and Dr. Best’s examination.

The ALJ then placed Finke’s claim in abeyance and ordered the parties to file status reports every sixty days. Finke [246]*246continued to receive TTD benefits through May 25, 2012.

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489 S.W.3d 242, 2016 WL 1719311, 2016 Ky. App. LEXIS 63, Counsel Stack Legal Research, https://law.counselstack.com/opinion/finke-v-comair-inc-kyctapp-2016.