*1 COMPANY, SQUARE Appellant, D TIPTON; Fund; Special
Bertha L. Donna Terry, Judge;
H. Administrative Board, Ap Compensation
and Workers’
pellees.
No. 92-SC-743-WC. Kentucky.
Supreme Court of
July 1993.
Rehearing Denied Oct. Hinkel, Shouse, & Lex-
Mark J. Landrum ington, appellant. Louisville, Tip- Sipek, appellee A.
Mark ton. Allen, Stephenson, E. Randall John
David
Louisville,
appellee Special
Fund.
THE COURT
OPINION OF
the standard
This case concerns
prove that a
an
must
com-
worker seeks
ment for which
is not
pensation benefits
not reasonable or
relief
the ef-
necessary for the cure and
injury.
KRS 342.020.
fects
claimant,
18,1986,
assem-
On
worker,
in her
bly
left work due
line
*2
309
that the scalenec-
sought
established
right
medical attention.
sive
wrist
months,
necessary
placed
tomy
neither reasonable nor
During the next 15
she was
increased,
duty,
pain
condition
light
on
cure and relief of claimant’s
for the
right
elbow and shoulder became affected.
as
KRS 342.020. Claimant
Eventually,
disability
shoulder
became
occupational
left
also
bene-
a 60%
awarded
During
paid tem-
painful.
this time she was
fit. The decision was affirmed
the Work-
disability
peri-
(Board).
porary, total
benefits for two
Compensation Board
ers’
ods,
totalling approximately
months.
3½
reversed, however,
of
Then,
14, 1987,
May
quit working
on
she
testimony of each
it believed that the
because
employer paid voluntary
altogether. Her
the three doctors who testified
of
12,
April
until
benefits
held
flawed. The Court also
defense was
phy-
treated
a
of
Claimant was
number
proper test for reasonableness
that “the
chiropractor
began
consult-
sicians and
physician and an in-
whether a
ing
surgeon, in
Dr. E.
a hand
Febru-
may reasonably
believe
1987,
quit
ary,
working.
before she
Dr. Ata-
proposed procedure are
the benefits of the
compression,
soy diagnosed thoracic outlet
as to
compression,
epicon-
radial tunnel
and radial
We have considered each
unremarkable,
dylitis. X-rays
were
three “flaws”
the medical evidence
In
nerve conduction studies were normal.
However,
Appeals.
after
the Court of
1987,
June,
performed
he
a radial
tunnel
entirety
reviewing the evidence
its
release,
claimant
testified relieved
ALJ,
that the
opinion of the
we believe
pain in
much of the
her elbow. Claimant
Appeals usurped the role of the fact finder
of
injections
muscle
on Janu-
received scalene
regarding
the facts and the inferences
both
29, 1988,
13, 1988,
ary
and on
evidence. The
to be drawn from the medical
to reheve the
shoulder
which failed
wrist and
and not the re
as the finder
problems.
Atasoy explained
that when
authority to de
viewing
has the sole
space
compressed, the
the thoracic outlet
character,
quality,
termine the
and substance
pass through that area can
nerves which
Foods, Inc. v.
of the evidence. Paramount
entrapped, causing pain.
April,
In
become
(1985).
Burkhardt, Ky.,
418
695 S.W.2d
right,
he
rib
first
resec-
Where,
here,
con
as
the medical evidence is
tion,
procedure
removing
which involves
flicting,
question
of which evidence
tissue,
attempt
muscle
in an
rib and some
province of the ALJ.
believe is the exclusive
right
to reheve claimant’s
wrist and shoulder
Brothers, Ky.,
Bugg
The ALJ reviewed require persua- ah that the more did not intend dence and concluded personal patients referred which result from treat- observation literature bene- “reasonable both indicated that employer may to the worker. An fit” any marginally None of effective event. rely he on this section claimant believed that the choice, for ex- dissatisfied with the worker’s *3 and, in procedure; the would benefit from ample, or the of treatment course is surgery one that believed additional lengthy, provide complete costly, or will well-being. her be detrimental to believe, however, cure. We that this section circumstances, we believe obligation pay relieves an of the to Under that the that the that, ALJ’s decision regardless procedures for treatments surgery was nor neces- neither reasonable treating physician, competence of the of the sary for the relief of this worker’s cure and unproductive shown or outside are to be the should, the condition and that by type generally accepted the treatment therefore, required pay for the not be to profession as reasonable the in- by supported evi- substantial jured also be- particular worker’s case. We It have dence. should not been disturbed by lieve that decisions should be made Accordingly, of the appeal. the decision particular the ALJs based on the facts and reversed, hereby case, long circumstances of each as there decision the Administrative support to the deci- is substantial evidence reinstated. sion. Pizza, supra, In National by the REYNOLDS, STEPHENS, C.J., and already disputed the treatment had JJ., WINTERSHEIMER, and SPAIN ap- performed. treatment been concur. only limit- peared the worker with LEIBSON, J., by separate dissents relief, pay ed the LAMBERT, opinion in which COMBS and it worker that for because the had testified JJ., join. relief; whereas, provided the some LEIBSON, Justice, dissenting. treat- had introduced no evidence that the pro- ment was not considered the medical Respectfully, I dissent. reasonable of treat- fession be a course well-considered, carefully In a written for and no evi- the worker’s condition case, the this treatment ineffective. dence that the applied and the for defined correct standard whether the In the instant the had employee surgery the the has decided yet performed. physicians All the been injury, undergo on the advice of treat her testified, including Atasoy, agreed who attending physician. her within was controversial community. employ notes, the medical Unlike the the Appeals duly Pizza, supra, er covering this treatment at the statute 342.020,speci- expense employer, KRS certi the introduced evidence from three board the cure whom, fies that “the shall surgeons, orthopedic fied like relief,” may employee “[t]he and that surgery of Atasoy, specialized the injury, and physician the to treat his select As noted upper hand extremities. It hospital in which he shall be treated.” the been the of these one highly undisputed employee the selected for a independently consulted the worker specialist, believes qualified doctor opinion regarding proposed sur the treatment there is reasonable likelihood pro gery. They provided that be of benefit. nature; dangerous and cedure was severe objective signs employer the this exhibited no that worker if right to select the mode of treatment thoracic outlet compression of nerve employer proves: proce justify considering the such as would "... dure; recom selected was not because of evidence; injury or objective employee to treat his mended absent such ready-to-work disease, employee painfree hospital selected or because of the unreasonable. being not make the employee in he is by the Moreover, that a do not believe id. we ed, receiving employee is not per- must achieve some recovery proper treatment and his before it becomes centage of effectiveness delayed; being affected or Therefore, we hold that reasonable.... or that the funds for his medical test reasonableness being spent without reasonable benefit are an in- competent physician and employee; or that because of the may reasonably believe physician selected or be- proposed proce- of the that the benefits type of medical treatment cause are such as dure being received *4 prejudiced be will Opinion states the Appeals’ The resulting any compensation proceedings in test, prop- Appeals and the Court disease; employee’s injury or from the compelled the the evidence erly decided that in this case
conclusion this test. The Administrative treatment met Appeals states and resolves The Court “big play no brother” present issue in the case as follows: employee whether to un- in what is “The issue this case concerns prescribed dergo medical treatment pre- reasonable medical treatment. More simply other qualified physician own cisely, primary issue is: when is physicians testifying for the dis- risky proposed course of treatment so or pute probability the statistical of benefit. lacking in benefit to the that an correctly stated: be language “The the statute exhibits The the treatment under KRS 342.020? allowing strong preference proving burden of the unreasonableness of appropriate to select the medical treatment is on the The testi- treatment. See KRS 342.020. National Pizza Co. v. re- mony cited the ALJ this case (1991). So, ques- S.W.2d 949 the ultimate specting scalenectomy does not meet Square D tion is has met its bur- whether Thus, outlined the standards above. scalenectomy proof den of substantial evi- cannot be considered as Atasoy be is unreason- the denial of the scale- supporting dence is, may able. That sustain its nectomy. [Citations omitted.]” having doctors [other] they state recommend put in Our decision perform proposed procedure?” [Em- employee’s right issue an medi- phasis original.] injury simply get- cal treatment for her interfering ting opinion. We are Appeals’ Opinion The Court of then care- employee’s right to decide for her- with fully reviews evidence. doctor, self, the advice of her with attending physician surgeon, employee’s proof that undergo surgery, when there is no very competent highly respected in his only proof her decision is unreasonable. field, physicians giving but three evidence for that other have testified here is testify they do not believe the prospect their benefit likely contemplated procedure is of benefit. justify requiring the does not The Court concludes: is not the test. procedure. This opinions really point, “Their are not wrong message. Opinion This sends however. An is entitled to medi- cal treatment which reason- LAMBERT, JJ., join this COMBS possible. able relief even when no cure is dissent. 342.020(1). is re- Such treatment though quired even it can do no more than employee’s
ease the and discomfort. Curry, supra. The
National Pizza Co. v.
fact that the treatment will not render