FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION
BOARD ACTION NO. WC-13-99644
FOR APPELLANT: Daniel Caslin Owensboro, Kentucky.
FOR APPELLEE: John C. Morton Henderson, Kentucky.
BEFORE: ACREE, D. LAMBERT AND JONES, JUDGES.
Roach appeals from the October 8, 2015 decision of the
Workers' Compensation Board vacating an Administrative
Law Judge's conclusion that out-of-pocket medical
expenses paid by Roach and an unpaid anesthesiology bill were
compensable. We affirm.
suffered a work-related injury on December 28, 2012, while
employed as a certified nursing assistant at Owensboro Health
Regional Hospital. Roach's orthopedist recommended
physical therapy and released her to work two months later.
Pain prevented Roach from returning to her former employment.
requested a second opinion from Dr. Paul Perry, another
orthopedist. Dr. Perry diagnosed post-traumatic right cubital
tunnel syndrome caused by Roach's work-related injury.
When conservative therapy yielded Roach no relief, Dr. Perry
performed an ulnar nerve decompression of the right elbow.
Dr. Perry released Roach to return to unrestricted employment
in August 2013, assigned a 3% whole person impairment rating,
and found Roach had reached maximum medical improvement.
filed a Form 101 seeking compensation for the 2012 injury.
Owensboro Hospital stipulated Roach sustained a work-related
injury, but contended the injury did not result in an
impairment rating meriting an award of permanent income
scheduling order was entered November 19, 2014, directing the
parties to file copies of all known exhibits and to file a
notice of contested issues ten days prior to the benefit
review conference (BRC). Roach did not identify as exhibits
any unpaid or out-of-pocket medical bills, and did not list
"unpaid or contested medical expenses" as a
contested issue in her pre-conference notice.
produced no settlement. The ALJ, in conjunction with the
parties, identified and memorialized in an order and
memorandum the contested issues to be addressed at the formal
hearing, including: benefits per KRS 342.730; work-relatedness/causation; and
temporary total disability benefits. (R. at 170).
"Unpaid or contested medical expenses" was not
marked as a contested issue. Roach's attorney signed the
order as accurate. (Id.).
formal hearing was held on March 24, 2015. The ALJ opened the
hearing by identifying the contested issues the parties
agreed on at the BRC. Again, "unpaid and contested
medical expenses" was not mentioned. Roach's
attorney confirmed the ALJ had accurately summarized the
contested issues. (R. at 176).
was the only testifying witness. During her direct and cross
examinations, the issue of unpaid medical expenses was not
addressed. However, on re-direct examination, for the very
first time, Roach raised the issue of unpaid and
out-of-pocket paid medical bills and identified those records
as exhibits. Roach testified she never
submitted the bills to Owensboro Hospital or its medical
payment obligor, KHA Solutions, for payment.
Owensboro Health's objection, the ALJ admitted the bills
into evidence. The ALJ granted Owensboro Hospital two weeks
to submit rebuttal ...