Roach v. Owensboro Health Regional Hospital

518 S.W.3d 786, 2017 WL 1290626, 2017 Ky. App. LEXIS 67
Court of Appeals of Kentucky·Decided April 7, 2017·No. NO. 2015-CA-001696-WC·Published

Opinion

OPINION

ACREE, JUDGE:

Kimberly Roach appeals from the October 8, 2015 decision of the Workers’ Compensation Board vacating an. Administrative Law Judge’s conclusion that out-of-pocket medical expenses paid by Roach and an unpaid anesthesiology bill were compensable. We affirm.

Roach suffered a work-related injury on December 28, 2012, while employed as a certified nursing assistant at Owensboro Health Regional Hospital. Roach’s orthopedist recommended physical therapy and released her to work two months later. Pain prevented Roach from returning to her former employment.

Roach requested a second opinion from Dr. Paul Perry, another orthopedist. Dr. Perry diagnosed post-traumatic right cubi-tal tunnel syndrome caused by Roach’s work-related injury. When conservative therapy yielded Roach no relief, Dr. Perry performed an ulnar nerve decompression of the right elbow. Dr. Perry released [788] Roach to return to unrestricted employment in August 2013, assigned a 3% whole person impairment rating, and found Roach had reached maximum medical improvement.

Roach filed a Form 101 seeking compensation for the 2012 injury. Owensboro Hospital stipulated Roach sustained a work-related injury, but contended the injury did not result in an impairment rating meriting an award of permanent income benefits.

A scheduling order was entered November 19, 2014, directing the parties to file copies of all known exhibits and to file a notice of contested issues ten days prior to the benefit review conference (BRC). Roach did not identify as exhibits any unpaid or out-of-pocket medical bills, and did not list “unpaid or contested medical expenses” as a contested issue in her pre-conference notice.1

The BRC produced no settlement. The ALJ, in conjunction with the parties, identified and memorialized in an order and memorandum the contested issues to be addressed at the formal hearing, including: benefits per KRS2 342.730; work-relatedness/causation; and temporary total disability benefits. (R. at 170). “Unpaid or contested medical expenses” was not marked as a contested issue. Roach’s attorney signed the order as accurate. (Id.).

A formal hearing was held on March 24, 2015. The ALJ opened the hearing by identifying the contested issues the parties agreed on at the BRC. Again, “unpaid and contested medical expenses” was not mentioned. Roach’s attorney confirmed the ALJ had accurately summarized the contested issues. (R. at 176).

Roach was the only testifying witness. During her direct and cross examinations, the issue of unpaid medical expenses was not addressed. However, on re-direct examination, for the very first time, Roach raised the issue of unpaid and out-of-pocket paid medical bills and identified those records as exhibits.3 Roach testified she never submitted the bills to Owensboro Hospital or its medical payment obligor, KHA Solutions, for payment.

Over Owensboro Health’s objection, the ALJ admitted the bills into evidence. The ALJ granted Owensboro Hospital two weeks to submit rebuttal evidence. No rebuttal evidence was provided.

By opinion and award rendered May 7, 2015, the ALJ found Roach had sustained a compensable injury to her right upper extremity resulting in a 3% whole person impairment. The ALJ awarded Roach permanent partial disability benefits, and future reasonable and necessary medical expenses associated with the treatment of her work-related injury. The ALJ did not specifically address the compensability of Roach’s out-of-pocket and unpaid medical bills.

Owensboro Hospital filed a petition for reconsideration asking, inter alia, that the ALJ deny Roach’s request for reimbursement and payment of the medical expenses at issue. Roach opposed the petition. The ALJ denied Owensboro Hospital’s request, stating: Owensboro Hospital “has also [789] challenged certain medical bills submitted by [Roach] at the final hearing as being untimely. The issue of unpaid or contested medical was not raised and as such the decision regarding the work relatedness of [Roach’s] injury is dispositive.” (R. at 245).

Owensboro Health appealed to the Board, asserting the ALJ erroneously failed to address the compensability of Roach’s outstanding medical bills. It reiterated its position that the bills were not compensable because Roach did not disclose the bills until her re-direct examination at the final hearing in violation of Kentucky’s regulatory provisions governing workers’ compensation proceedings. The Board found Owensboro Hospital’s argument to have merit. After comprehensively examining the regulations at issue, the Board reasoned:

The first time Roach raised [the issue of unpaid and contested medical bills] was on re-direct at the hearing when she testified about the medical bills and sought to introduce them as a collective exhibit.
Roach’s attempt to introduce the bills on re-direct was improper. As a general rule, re-direct is limited to covering testimony given on cross-examination. Offering testimony regarding unpaid medical bills and the attempt to introduce evidence concerning the medical bills during the hearing without previously complying with the regulations was also improper. This is particularly true since Roach did not identify unpaid or contested medical expense as a contested issue in the BRC Order. Thus, the ALJ committed an abuse of discretion by allowing Roach to introduce as exhibits the medical bills for which she sought reimbursement and payment....
Further, we take issue with Roach’s characterization Owensboro Hospital is arguing the minutia of workers’ compensation regulations. Owensboro Hospital appropriately contested Roach’s failure to comply with these administrative regulations governing the proceedings before the ALJ including those pertaining to the resolution of any disputes concerning contested medical treatment and/or unpaid medical bills.
We decline to. hold the ALJ could properly resolve the compensability of unpaid medical bills when Roach has utterly failed to comply with any of the regulations regarding the introduction of exhibits and failed to identify unpaid and contested medical expenses as a contested issue. At the very least, once the claim was instituted Roach should have filed all documents in support of her contention that these bills should be paid so the issues could be fully addressed by the parties. Importantly, the [surgical and therapy ledgers] reflect [Roach] began making payments on both bills sometime in the first quarter of 2013 which is approximately a year and a half before her claim was filed on November 4, 20Í4.

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Roach v. Owensboro Health Regional Hospital, 518 S.W.3d 786, 2017 WL 1290626, 2017 Ky. App. LEXIS 67 (Ky. Ct. App. 2017).

518 S.W.3d 786 (Roach v. Owensboro Health Regional Hospital) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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