 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
McDowell Appalachian Regional Hospital v. Rice9/26/2003
NOT TO BE PUBLISHED
OPINION AFFIRMING
McDowell Appalachian Regional Hospital (ARH) petitions for review from a decision of the Workers' Compensation Board (Board) finding Brenda Rice to be totally occupationally disabled following her motion to reopen her claim. We affirm.
Rice, a high school graduate, was employed by ARH for thirty-one years prior to sustaining a work-related injury on January 14, 1995. She was working as a licensed practical nurse when she injured her back attempting to move a very heavy patient in order to change his bed linens. Rice was diagnosed with an L5-S1 disc herniation and underwent surgery followed by treatment at Cardinal Hill Rehabilitation Center. At the time of her original workers' compensation claim, Rice was able to do moderate exercise, light housework, and cook at least one meal a day. She was awarded permanent partial disability benefits with an occupational disability rating of forty-five percent.
Two years later, Rice was hospitalized with severe back pain, spasms, and right leg pain all the way down to the ankle. She was placed in pelvic traction with heating pads, given physical therapy and prescribed stronger pain medication.
Because of the increase in pain and the strong, narcotic medications being prescribed, Rice moved to reopen her claim. She gave deposition testimony that she had difficulty sleeping, suffered spasms in both hips, could no longer exercise or perform housework, and had been forced to hire someone to clean her house once a week. In addition, Rice received no relief from her pain as a result of spinal injections and had stopped taking her Methadone and OxyContin prescriptions because she did not want to be on that type of medication. After the motion to reopen was sustained, an MRI conducted in September 2001 revealed scarring on the right side at L5, at the site of her original injury, and a new ruptured disc on the left side at L4-5.
Although Rice had never returned to work after her initial injury, the Administrative Law Judge (ALJ) found that her testimony of additional pain was very persuasive and that the left sided L4-5 herniation was related to the 1995 work injury. Due to her additional injury and the restrictions that examining physicians would impose on Rice's ability to work, the ALJ found that she was totally occupationally disabled. ARH appealed the ALJ's decision, arguing before the Board that there was no objective evidence that Rice's condition had worsened and that the left sided herniation was unrelated to her work injury.
The Board affirmed the decision of the ALJ, and this appeal followed.
On appeal, ARH continues to argue that there was no objective evidence presented that Rice's physical condition had deteriorated. In addition, ARH points out that Rice had always believed herself to be completely occupationally disabled as a result of the 1995 injury and that she was awarded Social Security disability benefits prior to the decision on her original workers' compensation claim. The Board's excellent analysis of ARH's arguments is compelling, and we adopt the following portion:
The only issue on appeal is whether there was substantial evidence of probative value to support the ALJ's conclusion. Wolf Creek Collieries v. Crum, Ky. App., 673 S.W.2d 735 (1984) and Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418 (1985). ARH believes the ALJ erred in concluding there was evidence of any kind that would support a finding of increase of occupational disability. ARH emphasizes that neither Dr. Pajel nor Dr. Templin testified to a change or increase in occupational disability. ARH also emphasizes the award of Social
Page 1 2 Kentucky Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|