Richey v. Perry Arnold, Inc.

391 S.W.3d 705, 2012 WL 976057, 2012 Ky. LEXIS 30
CourtKentucky Supreme Court
DecidedMarch 22, 2012
DocketNo. 2011-SC-000326-WC
StatusPublished
Cited by13 cases

This text of 391 S.W.3d 705 (Richey v. Perry Arnold, Inc.) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Richey v. Perry Arnold, Inc., 391 S.W.3d 705, 2012 WL 976057, 2012 Ky. LEXIS 30 (Ky. 2012).

Opinion

OPINION OF THE COURT

An Administrative Law Judge determined in this post-award reopening filed by the claimant that a surgery the employer failed to pre-authorize was reasonable and necessary; that the employer must pay for the procedure and related expenses; but that the parties’ settlement precluded any claim for temporary total [707]*707disability (TTD) benefits relative to the surgery. The ALJ also determined that the employer’s failure to pre-authorize or contest the surgery within 30 days did not warrant the imposition of sanctions.

The Workers’ Compensation Board reversed to the extent that it interpreted the settlement agreement as not precluding future TTD benefits but affirmed otherwise. Convinced that the agreement precluded additional income benefits, the Court of Appeals reversed with respect to future TTD and reinstated the ALJ’s decision.

This appeal by the claimant raises two issues. First, he argues that the terms of the parties’ agreement did not bar a future TTD claim. Second, he argues that KRS 342.310(1) and 803 KAR 25:012 § 2(1 )(a) warranted sanctions based on what he alleges was the employer’s unreasonable defense to his motion to compel payment for the surgery after it violated 803 KAR 25:096, § 8(1) by refusing to pre-authorize the surgery and then failing to file a motion to reopen and medical dispute within 30 days.

We affirm insofar as the settlement barred a future TTD award but reverse and remand with respect to the issue of sanctions. The ALJ must reconsider the claimant’s request based on a correct understanding of the employer’s obligations concerning the pre-authorization request and on any other considerations relevant to the reasonableness of its action in defending the reopening.

The claimant, a carpenter, injured his right shoulder on July 13, 2004, while pulling on a beam that he was attempting to install beneath a floor system. After conservative treatment failed to relieve his symptoms, he saw Dr. Richards, an orthopedic surgeon. Dr. Richards performed arthroscopic surgery and a subacromial decompression in October 2004. He diagnosed subacromial bursitis. The claimant returned to light-duty work in December 2004 although his shoulder symptoms continued. Dr. Richards noted in January 2005 that he could not explain the claimant’s ongoing pain complaints and recommended a second opinion because his condition was not improving.

Dr. Goldman performed an independent medical evaluation for the employer in February 2005. He recommended an MR arthrogram to be certain that a labral tear did not occur during physical therapy or that there was not a problem with the biceps anchor. Finding the claimant to be at maximum medical improvement if neither condition was present, Dr. Goldman assigned a 9% impairment rating based on a decreased range of motion in the shoulder.

Dr. Dunn evaluated the claimant in August 2005 at his primary care physician’s request. He thought that the claimant did not have a labral tear that was significant mechanically and thought that further surgery would be harmful. He recommended that the claimant follow up with his primary care physician.

The claimant sought pre-authorization for a referral to Drs. Kleinert and Kutz shortly after seeing Dr. Dunn. His employer denied the request in September 2005 based on a utilization review report by Dr. Olash, who opined that the referral was not medically necessary.

Dr. Gladstein evaluated the claimant on the employer’s behalf in September 2005, at which time he exhibited a full range of motion in the shoulder but complained of discomfort. Dr. Gladstein found no evidence of atrophy, crepitus, instability, or appreciable muscle weakness. He also noted that no significant radiographic abnormality supported a diagnosis of a significant SLAP lesion. Dr. [708]*708Gladstein reviewed the MR arthrogram with a radiologist and noted that the “relatively normal” findings were supported by the arthroscopy performed by Dr. Richards, which also revealed no significant pathology. He concluded that further surgery was not indicated.

The parties agreed to settle the matter on November 2, 2005 although the claimant had not filed a formal application for benefits. As approved by an ALJ on November 9, 2005, their Form 110-1 agreement characterized the claimant’s injury as a right shoulder rotator cuff tear. It stated that his average weekly wage was $417.28; that the employer paid $14,693.31 in medical expenses through September 16, 2005; that it paid $6,040.04 in TTD expenses through November 2, 2005; and that the percent of disability was 9%. The agreement did not include a calculation of the lump sum provided and made no reference to a multiplier. It concluded with the following statement:

This is a lump sum settlement of $15,500 for complete resolution of indemnity benefits. Medical benefits remain open per the Act.

The motion and affidavit requesting an attorney’s fee, filed by the claimant’s then-attorney, stated among other things that the parties agreed to settle the claim and that the claimant retained the right to future medical treatment but waived the right to reopen.

In August 2006 the claimant sought pre-authorization for a referral to the Tennessee Orthopedic Alliance. Dr. Kirsch performed a utilization review and recommended denying the request as being not medically necessary. He noted that three orthopedic experts saw no evidence of a significant labral lesion and also that Dr. Richards evaluated the labrum “under direct vision.” The employer relied on the recommendation to deny the referral. Pleadings the employer filed before the ALJ in the present proceeding state that the claims adjuster advised the claimant in at least three separate conversations prior to February 20, 2007 that the evaluation was not approved for compensation. The employer did not, however, file a motion to reopen or medical dispute.

The claimant saw Dr. Anderson at the Tennessee Orthopedic alliance on February 20, 2007, at his own expense. Dr. Anderson examined him and interpreted the 2005 MR arthrogram as revealing a tear of the anterior glenohumeral ligament and a SLAP tear. He recommended arthroscopic surgery to evaluate and repair an anterior laxity and SLAP tear if necessary.

The employer did not dispute that it received a message the claimant sent by fax on February 27, 2007 to the claims adjuster’s attention along with a copy of Dr. Anderson’s February 20, 2007 office note. The claimant stated in the fax that he sought reimbursement for various expenses incurred in the visit to Dr. Anderson. He also requested compensation for the proposed surgery, time off work related to the surgery, travel expenses, and physical therapy if recommended. The employer did not respond to the request.

Having received no response from the employer, the claimant underwent the surgery on April 3, 2007. Dr. Anderson performed an arthroscopic repair of the anterior and posterior glenoid labrum and a subacromial decompression. He opined in December 2007 that the claimant’s work-related injury caused a tear in the glenoid labrum; assigned a 4% impairment rating; and limited the claimant to lifting 40 pounds presently but stated that he should able to work without restrictions within three months.

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Bluebook (online)
391 S.W.3d 705, 2012 WL 976057, 2012 Ky. LEXIS 30, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richey-v-perry-arnold-inc-ky-2012.