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RENDERED: DECEMBER 15, 2022
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2022-SC-0016-WC
ELLIS POPCORN CO. C/O APPELLANT
MATRIX COMPANIES, TPA
ON APPEAL FROM COURT OF APPEALS
NO. 2021-CA-1043
WORKERS’ COMPENSATION BOARD
NO. WC-91-04106
V.
ROBERT STOGNER; DR. ROBERT APPELLEES
HAYDEN; DR. STEPHEN COMPTON; DR.
JOHN RUXER/ORTHOPAEDIC INSTITUTE
OF WESTERN KENTUCKY;
HONORABLE JOHN MCCRACKEN,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
AFFIRMING
This appeal comes to us from Ellis Popcorn Company’s medical fee
dispute challenging the Appellee, Robert Stogner’s, treatment to injuries of the
left knee, left hip, left ankle, and right shoulder. The Administrative Law Judge
found these ailments to be a direct and natural consequence of a head trauma
injury Stogner sustained on December 26, 1990, when he fell off a ladder. This
finding was predicated on Stogner’s testimony and a 2017 medical report filed
in a prior medical fee dispute related to Stogner’s 1990 injury. Ellis argues
medical reports prior to June 2020 cannot be used by the ALJ to find
causation nor can Stogner’s own testimony. Instead, Ellis argues, Stogner
needed to supply a medical opinion attributing his June 16, 2020, fall to his
1990 injury. On appeal, the Board affirmed the ALJ. The Court of Appeals
subsequently affirmed the Board. Upon review, we affirm the Court of Appeals.
I. Facts
Per the ALJ’s finding of facts, Stogner suffered a head injury on
December 26, 1990, when he slipped and fell from a ladder, falling headfirst
into a concrete floor, “and sustained a closed head injury with significant loss
of function, including vision and hearing problems, as well as injuries to his
low back.” Stogner related that since 1990 he has fallen hundreds of times and
he is a high risk for falls.
As a result of his 1990 injury, Stogner was diagnosed with ataxia (the
loss of muscle coordination), experienced seizures, and had to wear a brace on
his left leg as well as walk with a cane. In 2017, because of two falls, he was
diagnosed with a disc protrusion. He saw Dr. Zerga for an examination. Dr.
Zerga concluded the disc protrusion was linked to the 1990 injury, and
commented further on Mr. Stogner’s medical history, noting
several issues in this gentleman. He had . . . significant brain
trauma . . . He now has a mechanical movable brace [on his left
leg] and has spasticity in both limbs . . . 400 to 500 falls. He
blames it on his brace. He says sometimes his brace will
malfunction and it will cause him to fall. He also has seizures. By
his wife’s description they are complex partial seizures sometimes
with secondary generalization.
Dr. Zerga further opined that “his neurological deficits have caused frequent
falls.” This report, along with statements by Stogner, formed the foundation for
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the ALJ’s ruling below. Stogner testified that he fell on June 16, 2020, as a
result of his knee brace malfunctioning, i.e., it apparently locks in place
sometimes and prevents Stogner from either bending or extending his leg
correctly to maintain balance.
To the contrary, Ellis elicited the opinion of Dr. Avrom Gart. He
performed a medical records peer review on August 5, 2020, but did not
personally evaluate Stogner. Dr. Gart concluded the 1990 injury did not cause
the left knee, left hip, left ankle, and right shoulder complaints but instead
were the result of a fall on June 16, 2020, which was caused by Stogner’s
development of knee osteoarthritis. The ALJ found Dr. Gart unpersuasive and
his failure to evaluate Stogner in person as a reason to reject his opinion. The
Board noted further,
Dr. Gart failed to consider that Ellis has had to pay for several
injuries caused by falls. The medical history proves he is a high fall
risk because injuries sustained in the fall at work compromised
the functioning of his left leg/knee. The original injury caused
nerve damage in the left leg and knee and impaired balance due to
ataxia related to the brain injury.
…
It is not clear from Dr. Gart’s report that he had an accurate
history regarding the number of falls caused by conditions related
to the original work injury. Dr. Gart only lists Dr. Compton’s
medical records from June 17, 2020 as records he reviewed. He
indicated he had a peer discussion with Dr. Compton. Dr. Gart did
not discuss the cause of the osteoarthritis, other than stating the
1990 incident was not the cause. He did not discuss whether
hundreds of falls caused by the effects of the work-related injury
would have caused or contributed to the osteoarthritis. He did not
address how the buckling of the knee in 2020 would have a
different cause than the buckling of the knee in 2017 that was
determined to be the result of the 1990 injury.
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The Board determined the ALJ was within his authority to reject Dr. Gart’s
opinion and accept Dr. Zerga’s. It further determined that consideration of Dr.
Zerga’s medical opinion was within the ALJ’s authority even though Stogner
had never designated it as evidence.
Before the Court of Appeals, Ellis abandoned the argument that Dr.
Zerga’s report was improperly considered as evidence due to a lack of
designation. Consequently, that argument is not before this Court either and
we presume Dr. Zerga’s report was properly considered as an evidentiary
matter. Instead, Ellis argues Dr. Zerga’s report does not constitute substantial
evidence because it was rendered in 2017. In other words, “the ALJ erred by
relying on the 2017 IME report of Dr. Zerga to conclude that a fall that
occurred in 2020 was causally related to the neurologic effects of the plaintiff’s
underlying work injury.” Ellis also argues that a 2017 report cannot constitute
substantial evidence for a 2020 fall because Dr. Zerga obviously would have
not had an adequate medical history of Stogner between the 2017 evaluation
and the 2020 fall, thus should be disallowed under Cepero v. Fabricated Metals
Corp., 132 S.W.3d 839 (Ky. 2004). Finally, Ellis argues that Kingery v.
Sumitomo Electric, 481 S.W.3d 492 (Ky. 2015) controls because it held ALJ’s
are not free to ignore uncontradicted medical testimony regarding causation
except in limited circumstances not present in Stogner’s case.
II. Standard of Review
The ALJ, as the finder of fact, and not the reviewing court, has the
sole authority to determine the quality, character, and substance
of the evidence. Paramount Foods, Inc. v. Burkhardt, Ky., 695
S.W.2d 418 (1985). Where, as here, the medical evidence is
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conflicting, the question of which evidence to believe is the
exclusive province of the ALJ. Pruitt v. Bugg Brothers, Ky., 547
S.W.2d 123 (1977).
Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993). But “ALJs are not
permitted to rely on lay testimony, personal experience, and inference to make
findings that directly conflict with the medical evidence, except in limited
situations, such as matters involving observable causation.” Kingery v.
Sumitomo Electric Wiring, 481 S.W.3d 492, 496 (Ky. 2015). On appeal, this
Court addresses itself to “new or novel questions of statutory construction, or
to reconsider precedent when such appears necessary, or to review a question
of constitutional magnitude.” Western Baptist Hosp. v. Kelly, 827 S.W.2d 685,
688 (Ky. 1992). We do not engage in reassessment of facts, inferences
therefrom, or the reweighing of evidence. Id. at 687. In medical fee disputes,
the employer bears the burden of showing the contested medical treatment is
unreasonable or unnecessary. Richey v. Perry Arnold Inc., 391 S.W.3d 705, 712
(Ky. 2012).
III. Analysis
Ellis’ arguments are unavailing as neither of the cases it cites for
compelling reversal in fact demand such an outcome here. In Kingery, the
claimant suffered a mild strain to her shoulder and neck after one month of
work. 481 S.W.3d at 494. Twenty-one years later, Sumitomo challenged
continued payments for several prescription painkillers. Kingery submitted “no
medical evidence to rebut Dr. Randolph's opinions” that the prescriptions were
not related to her prior work injury. Id. at 495. Moreover, Kingery’s argument
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that she was unable to work due to the injury was contrary to the ALJ’s
original opinion and order that found “the work-related injury did not prevent
her from returning to her employment with Sumitomo (or any other
employment for that matter).” Id. at 496. Because Kingery never reopened her
original case as a result of her allegedly worsening condition, she was bound by
the original findings. Id. at 497-98. In contradistinction, Stogner was found to
have suffered a traumatic brain injury by the ALJ in 1993. He was adjudged
100% occupationally disabled and “cannot perform meaningful employment.”
The medical evidence recorded by the original ALJ noted he suffered from
“ataxia and unsteady gait such that he cannot walk without a cane.” He was
also prescribed “Dilantin for seizures[.]” Thus, Dr. Zerga’s report in 2017 is
consistent with the original findings of the ALJ in Stogner’s case.
Additionally, even if Kingery were controlling in this case, its central
ruling would not compel reversal. Kingery holds that uncontradicted medical
testimony is controlling upon an ALJ except in cases of “observable causation.”
Id. at 496. Here, Stogner testified that his fall on June 16th occurred, as the
ALJ recounted, “due to his left knee failing to ‘lock’ on the forward motion of
his left leg and buckling, causing him to fall hard on his left side.” In other
words, the mechanical failure of Stogner’s knee brace was the proximate cause
of the fall, not a neurological issue such as a seizure. As such, there was a
readily observable causation present in Stogner’s June 16th fall and Stogner’s
own testimony is competent proof for an ALJ to attribute the fall to mechanical
failure of a knee brace.
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Cepero also does not compel reversal. That case stands for the rule that
“where it is irrefutable that a physician's history regarding work-related
causation is corrupt due to it being substantially inaccurate or largely
incomplete, any opinion generated by that physician on the issue of causation
cannot constitute substantial evidence.” 132 S.W.3d at 842. But we also
included an oft-overlooked caveat that “Medical opinion predicated upon such
erroneous or deficient information that is completely unsupported by any other
credible evidence can never, in our view, be reasonably probable.” Id.
(Emphasis added). As just noted, Dr. Zerga’s 2017 report is entirely consistent
with the original opinion and order from 1993, despite Dr. Zerga explicitly
stating he did not have access to prior records regarding the 1990 injury
specifically. Therefore, there is no basis to hold he “irrefutably” had an
inadequate medical history in 2017. Moreover, the 1993 original opinion and
order is credible evidence supporting Dr. Zerga’s report.
Ellis has not cited to any statute or case law that prohibits an ALJ in a
medical fee dispute from considering the medical testimony from the original
case or prior medical fee disputes, or the findings of previous ALJ’s where
available. Indeed, we would expect such records to be utilized. The ALJ below
used Dr. Zerga’s report “as a reasonable explanation for the falls which is
consistent with Plaintiff’s current statements.” And although Dr. Zerga did
believe seizures had caused Stogner to fall in the past, he also recounted
Stogner’s attribution of hundreds of falls to his knee brace, which is exactly
what Stogner states caused the June 16th fall. Ellis reads too much into the
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ALJ’s orders when it states the ALJ used Dr. Zerga’s report to attribute
causation to “neurologic effects[.]” No such finding was ever made by the ALJ in
this particular medical fee dispute.
To put it plainly, Stogner would not wear a knee brace but for the 1990
fall, and but for the mechanical failure of the knee brace he would not have
fallen on June 16, 2020. Therefore, the latter is a direct and natural
consequence of the former. This finding is supported by substantial evidence,
and we cannot say Ellis’ evidence compels a contrary finding. Special Fund v.
Francis, 708 S.W.2d 641, 643 (Ky. 1986). Ellis’ only evidence that the fall was
not a direct and natural consequence of the 1990 injury was Dr. Gart’s opinion
stemming from a peer review of one other doctor’s medical reports. But as the
Board accurately pointed out, Dr. Gart’s attribution of the fall to osteoarthritis
in the knee wholly neglects to consider that the osteoarthritis itself may be at
least partially related to Stogner’s 1990 injury—a conclusion so obvious that
the Board believed Dr. Gart was the one who seemingly had an inadequate
medical history, not Dr. Zerga. In any event, Dr. Gart’s report by itself simply
does not compel a conclusion that the June 16th fall was not a direct and
natural consequence of Stogner’s 1990 injury. And since the ALJ’s ruling does
not otherwise conflict with Kingery or Cepero, we affirm.
All sitting. All concur.
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COUNSEL FOR APPELLANT:
Matthew J. Zanetti
Ferreri Partners, PLLC
COUNSEL FOR APPELLEE, Robert Stogner:
Jeffrey A. Roberts
ADMINISTRATIVE LAW JUDGE:
John McCracken
WORKERS’ COMPENSATION BOARD:
Michael Wayne Alvey,
Chairman
APPELLEE:
DR. JOHN RUXER/ORTHOPAEDIC INSTITUTE OF WESTERN KENTUCKY
APPELLEE:
DR. ROBERT HAYDEN
APPELLEE:
DR. STEPHEN COMPTON
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