RENDERED: JANUARY 8, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1008-WC
MENARD’S APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. 14-WC-85570
GARY SCOTT; HONORABLE CHRIS
DAVIS; COMMONWEALTH OF
KENTUCKY EX REL. DANIEL J.
CAMERON, ATTORNEY GENERAL;
GREGORY POLKOWSKI, M.D.; DR.
HELOISE WESTBROOK, M.D.; OHIO
COUNTY HOSPITAL; ROBERT
BYRD, M.D.; VANDERBILT
MEDICAL CENTER; AND
KENTUCKY WORKERS’
COMPENSATION BOARD APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, LAMBERT, AND K. THOMPSON, JUDGES.
COMBS, JUDGE: This is a workers’ compensation case involving a post-award
medical fee dispute. The Workers’ Compensation Board (the Board) affirmed the
determination of the Administrative Law Judge (ALJ) that two right-knee surgeries
performed by Dr. Polkowski are work-related and compensable. Finding no error
after our review, we affirm.
On January 29, 2015, the Appellee, Gary Scott (Scott), filed a Form
101/Application for Resolution of Injury Claim. Scott alleged an April 18, 2014,
injury in the course and scope of his employment at Menard’s when the ladder
upon which he was standing collapsed. Following the injury, Scott underwent
bilateral knee arthroscopies on June 30, 2014; a left total knee arthroplasty on
April 27, 2015; and a right total knee arthroplasty on July 13, 2015.
His claim was settled with respect to the bilateral knee injuries. Form
110/Agreement as to Compensation is dated February 2, 2018, and it was approved
by an order entered on February 19, 2018. (Record on Appeal, Vol. V, pp. 662-65).
The case was settled for a lump sum of $85,000.001 with future medicals “to
remain open for bilateral knees, including the right of employer/payment obligor to
challenge proposed treatments, therapies, medications, etc.” Form 110 described
1
The opinion of the Board states at page 2 that: “The January 29, 2015, Form 110 settlement
agreement indicates the parties reached a $7,500.00 lump sum settlement . . . .” It appears that
the Board may have referred mistakenly to a Form 110 in a prior claim, Gary Scott v. Sodexo,
No. WC-11-00991, a copy of which defense counsel filed in the underlying claim for the April
18, 2014, injury before ALJ. (Record on Appeal, Vol. I, pp. 78-84).
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the event that resulted in Scott’s injury as “Fall from ladder, injuring knees (other
injuries contested)” and described the nature of the injuries/body parts affected as
“Right knee, left knee . . . .” Other contested injuries/body parts were submitted to
the ALJ for a decision and are not at issue in this appeal.
In 2019, Dr. Polkowski at Vanderbilt Medical Center performed two
additional right-knee surgeries on Scott due to infection in the right-knee
replacement: (1) February 6, 2019, arthroplasty removal prosthesis and insertion
spacer right knee; and (2) April 29, 2019, revision arthroplasty total knee and
synovectomy/ bursectomy knee.
Menard’s contested the two 2019 surgeries by way of a
(Supplemental) Medical Fee Dispute/Form 112, which is the subject of this appeal.
By opinion and order rendered on February 25, 2020, the ALJ determined that the
knee surgeries were work-related and compensable as follows:
The Plaintiff’s position is that the symptoms which
gave rise to the treatment continued in varying degrees,
but unabated, since the time of his 2015 right total knee
arthroplasty . . . .
I note, as a procedural matter that while there has
been an Opinion and Order on other issues in this claim
there has never been an Opinion regarding the work-
relatedness of the right knee. There has only been a
Form 110, Settlement Agreement. That is not binding on
the Medical Payment Obligor [MPO] as to any issues,
including causation of the right knee.
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Regardless, the record demonstrates that after his
fall from the ladder at work, on April 18, 2014, the
Plaintiff had extensive conservative medical treatment,
culminating in a right total knee arthroplasty [TKA] on
July 13, 2015. The MPO paid for that surgery.
...
. . . I find that the Plaintiff did have a permanent work-
related injury, to the right knee, on April 18, 2014. That
injury resulted in the July 13, 2015 TKA. For that injury,
the treating surgeon, Dr. Beck, assigned an impairment
rating and Dr. Barlow agreed it was work-related.
The MPO’s next, and perhaps stronger, argument
is that the February 6 and April 29, 2019 surgeries by Dr.
Polkowski are not work-related even if the 2015 surgery
was. Their argument contains two components. One, the
inflammation that occurred to cause the removal and
revision surgeries [in 2019] is too remote in time to be
related to the 2015 surgery and the Plaintiff’s co-morbid
medical conditions are the actual cause. Again, this is a
fair reading of Drs. Dyer and Freimark.[2]
However, this argument is counter-balanced by
several pieces of evidence. The first is Scott’s own
testimony that the swelling and hotness in his right knee
continued unabated from 2015 through the time he saw
Dr. Polkowski and was treated by him. While Plaintiffs
are not expected to, and really can’t, make complex
medical diagnoses they can provide relevant testimony.
This testimony, which I accept, demonstrates that the
symptoms did not arise 3 ½ years after the 2015 surgery
but immediately.
Second, the records from Scott’s primary care
physicians at Ohio County Family Medical demonstrate
that on no less than 14 visits between December 1, 2017
2
Dr. Dyer performed an Independent Medical Exam. Dr. Freimark performed a records review.
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and January 16, 2019, Scott complained about his right
knee and received treatment for it. This again indicates
this was an on-going problem and did not materialize in
late 2018 or early 2019.
Third, and most relevant to me, is that the treating
surgeon, Dr. Gregory Gerald Polkowski, on January 22,
2019, writes that Scott’s right knee “infection and
inflammation reaction due to internal right knee
prosthesis.” (Emphasis added) . . . [I]f the Vanderbilt
surgeon, with no known or demonstrated bias, makes this
diagnosis and causation statement I am persuaded. As
such, the infection and inflammation were due to the
internal right knee prosthesis.
If the infection and inflammation are due to the
prosthesis, which I have already found work-related then
it stands to reason that the February 6, 2019 surgery to
remove the prosthesis due to the infection is work-related
as is the April 29, 2019 revision arthroplasty, of which
Scott still needed a new one.
In reliance on the above analysis, the February 6,
2019 and April 29, 2019 surgeries by Dr. Polkowski are
work-related. There has been no contest over the
treatment’s reasonableness and necessity. Therefore, the
surgeries are compensable.
(Emphasis original).
Menard’s filed a petition for reconsideration, which the ALJ denied
by an order entered on March 27, 2020.
Menard’s appealed to the Board and argued that the ALJ did not rely
on substantial evidence in concluding that the surgeries were compensable.
Menard’s also contended that the ALJ made a patent error because “he did not
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address any additional treatment which may or may not have been related to the
infection and/or surgeries which were issues in this dispute.”
On July 17, 2020, the Board entered an opinion affirming in part,
vacating in part and remanding, which provides in relevant part:
In the February 25, 2020, decision the ALJ found
Dr. Polkowski’s medical records were most convincing
to his determination the two contested surgeries are
work-related and, therefore, compensable. Throughout
Dr. Polkowski’s medical records, particularly the medical
records detailed herein, he diagnosed an “infection and
inflammatory reaction due to internal right knee
prosthesis.” (emphasis added). We take issue with
Menards’ allegation this is not a statement pertaining to
causation. Causation is a factual issue to be determined
within the sound discretion of the ALJ as fact-finder.
Union Underwear Co. v. Scearce, 896 S.W.2d 7 (Ky.
1995). Further “[i]t is the quality and substance of a
physician’s testimony, not the use of particular “magic
words,” that determines whether it rises to the level of
reasonable medical probability, i.e., to the level necessary
to prove a particular medical fact.” Brown-Forman Corp.
v. Upchurch, 127 S.W.3d 615, 621 (Ky. 2004). Dr.
Polkowski utilized the phrase “due to,” thereby
transforming this diagnostic statement into one in which
the ALJ can properly infer causation. Consequently, Dr.
Polkowski’s opinions constitute substantial evidence
supporting the ALJ’s finding of a causal connection
between Scott’s right knee infection and the prosthesis
implanted during the original July 15, 2015, total knee
replacement surgery. The ALJ concluded Scott’s right
knee injury and the July 15, 2015, total knee replacement
are work-related, and that determination has not been
challenged on appeal. Therefore, when the contested
surgeries performed by Dr. Polkowski are necessitated in
any part by Scott’s work-related right knee injury, they
must be compensable.
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(Emphasis original). The Board concluded that “Dr. Polkowski’s medical
opinions, Scott’s testimony, and the medical records from Ohio County Specialty
and Family Care constitute substantial evidence supporting the ALJ’s
determination the two contested surgeries are work-related and, therefore,
compensable.”
The Board affirmed the ALJ’s finding that the two surgeries were
work-related and compensable. The Board vacated that portion of the ALJ’s
March 27, 2020, order denying the petition for reconsideration filed by Menard’s
and remanded the case to the ALJ with instruction that he address the following:
the compensability of “all treatment resulting from or
necessitated by the [right knee] infection, surgical
interventions, pre and post-operative care, medication
and expenses associated therein [and] any other medical
treatment related to Scott’s right knee infection” as
contested in the June 24, 2019, Motion to Amend and
enter an amended order and award. Further, in an
amended order and award, the ALJ must award future
medical benefits for Scott’s work-related right knee
injury.
Menard’s timely filed a petition for review in this Court. Its sole
argument on appeal is captioned as follows: “The Board and ALJ’s opinions
consistent [sic] a gross miscarriage of justice in disregarding Dr. Friemark’s
Opinions and relying on Dr. Polkowski and the claimant’s statements.” (Bold-face
emphasis omitted). Menard’s contends that “there was no substantive evidence
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that the 2015 knee replacement/prosthetic caused the infection.” In essence,
Menard’s reargues its case.
KRS[3] 342.285 grants an ALJ—as fact-finder—sole
discretion to determine the quality, character, and
substance of the evidence. An ALJ may draw reasonable
inferences from the evidence, reject any testimony, and
believe or disbelieve various parts of the evidence,
regardless of whether it comes from the same witness or
the same adversary party’s total proof. In that regard, an
ALJ is vested with broad authority to decide questions
involving causation.
Although a party may note evidence that would
have supported a different outcome than reached by an
ALJ, such proof is an inadequate basis for reversal on
appeal. Rather, it must be shown there was no evidence
of substantial probative value to support the decision.
The appellate tribunal may not usurp the ALJ’s role as
fact-finder by superimposing its own appraisals as to
weight and credibility or by noting other conclusions or
reasonable inferences that otherwise could have been
drawn from the evidence. If an ALJ’s findings of fact are
supported by substantial evidence, a finding contrary to
the ALJ’s findings cannot be sustained.
Miller v. Go Hire Employment Development, Inc., 473 S.W.3d 621, 629 (Ky. App.
2015) (citations omitted).
We agree with the Board’s analysis that substantial evidence supports
the ALJ’s determination that the two surgeries are work-related and compensable.
The ALJ thoroughly explained the basis for his decision. The ALJ did not rely
3
Kentucky Revised Statutes.
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upon the claimant’s testimony to establish causation as Menard’s suggests in its
Brief. Rather, the ALJ accepted Mr. Scott’s testimony about his condition -- that
he had ongoing right knee problems following the 2015 TKA. A worker’s
testimony is competent evidence of his physical condition and abilities. Ira A.
Watson Dep’t Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000). In addition, the
ALJ was persuaded by the records from Mr. Scott’s primary physicians, Ohio
County Medical, which established that Mr. Scott treated for an ongoing right knee
problem. And -- as was his prerogative -- the ALJ believed the causation opinion
of Dr. Polkowski, the “Vanderbilt surgeon, with no known or demonstrated bias.”
Accordingly, we AFFIRM the opinion of the Workers’ Compensation
Board entered July 17, 2020.
ALL CONCUR.
BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEES.
Mark Bush
Ft. Mitchell, Kentucky
Samantha Steelman
Ft. Mitchell, Kentucky
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