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General Electric v. Lewis9/16/2005
AFFIRMING
BEFORE: GUIDUGLI AND MINTON, JUDGES; ROSENBLUM, SENIOR JUDGE.
General Electric (GE) has petitioned for review of an opinion of the Workers' Compensation Board (Board) entered on April 15, 2005, which affirmed an opinion and award of the administrative law judge (ALJ) rendered November 9, 2004, determining that surgery performed on Barbara Lewis' (Lewis) left ankle was compensable under Kentucky Revised Statutes (KRS) 342.020.
Before us, GE contends that the Board erred in not remanding the case to the ALJ to enter a revised opinion indicating that the disputed medical condition is not compensable, arguing that 1) the medical report relied on by the ALJ, which provided the sole evidence of causation, was not properly filed as evidence pursuant to 803 Kentucky Administrative Regulations (KAR) 25:012, and alternatively, 2) the ALJ's decision as to causation is not based on substantial evidence.
Our standard of review of a decision of the Board "is to correct the Board only where the Court perceives the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice." Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). Having reviewed the Board's application of the law and the evidence, we conclude that the Board committed no error.
Lewis was born March 15, 1950. She worked for GE for twenty years, beginning in March, 1977. While in GE's employ she sustained several injuries which were compensated by GE as work-related -- right knee (1994); left ankle (1995); right shoulder (1996), and carpal tunnel.
At issue herein is the 1995 injury to the left ankle. Lewis tripped over a wire basket containing parts and the injury to her left ankle caused her to be off work for several weeks. She was eventually diagnosed with a stress fracture and put in a cast. Over the next few years, she had flare-ups of pain which were treated unsuccessfully with orthotics, stockings, casting, nonsteroidal anti-inflammatories, and cortisone injections.
When she became unable to walk or sustain balance she sought help from Dr. John Sanders (Dr. Sanders) who performed surgery to insert a screw in her left ankle. According to an independent medical examination (IME) and medical records review conducted by Dr. Martyn Goldman (Dr. Goldman) for GE and filed in the record herein, Dr. Sanders' records indicate that he recommended ankle surgery as a direct result of Lewis' 1995 work injury, where the "(p)atient experienced injury directly to the posterior tibial tendon navicular area." In Dr. Sanders' postoperative report (filed by Lewis in this record as an attachment to her initiating motion to reopen and motion for fee dispute), Lewis had reported to Dr. Sanders a history of "chronically painful left foot and ankle, secondary to a previous injury, which had caused continued irritation." (emphasis added). GE did not challenge the compensability of the surgery or the medication to treat a rash following the surgery.
Although she did not have any additional injuries to the ankle, Lewis' pain continued and Dr. Sanders recommended a second surgery to remove the left ankle screw. Lewis sought a second opinion from her knee physician. He referred her to Dr. Mark Petrik (Dr. Petrik), and both of these doctors concluded that Lewis needed surgery on her left ankle. Dr. Petrik, in a report filed in the record by Lewis, indicated that the original surgery by Dr. Sanders was "to try to correct an acquired progressive flatfoot problem which she reported evolved while she was still working, and which apparently has been accepted a
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