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Roach v. Owensboro Health Regional Hospital

Court of Appeals of Kentucky

April 7, 2017

KIMBERLY ROACH APPELLANT
v.
OWENSBORO HEALTH REGIONAL HOSPITAL; HON. JONATHAN R. WEATHERBY, ADMINISTRATIVE LAW JUDGE; AND WORKERS COMPENSATION BOARD APPELLEES

         PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-13-99644

          BRIEF FOR APPELLANT: Daniel Caslin Owensboro, Kentucky.

          BRIEF FOR APPELLEE: John C. Morton Henderson, Kentucky.

          BEFORE: ACREE, D. LAMBERT AND JONES, JUDGES.

          OPINION

          ACREE, JUDGE.

         Kimberly 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.

         Roach 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.

         Roach 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.

         Roach 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 benefits.

         A 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.[1]

         The BRC 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[2] 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.).

         A 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).

         Roach 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.[3] Roach testified she never submitted the bills to Owensboro Hospital or its medical payment obligor, KHA Solutions, for payment.

         Over Owensboro Health's objection, the ALJ admitted the bills into evidence. The ALJ granted Owensboro Hospital two weeks to submit rebuttal ...


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