 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Kirk v. Ruth Contractors6/16/2005
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED. " PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28 (4) (c), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS AUTHORITY IN ANY OTHER CASE IN ANY COURT OF THIS STATE.
MEMORANDUM OPINION OF THE COURT
AFFIRMING
On March 10, 1986, the claimant was found to be permanently and totally disabled by coal workers' pneumoconiosis and was awarded income and medical benefits. This appeal concerns the decision in a reopening by his employer to contest the compensability of certain post-award medical services. In a decision that was affirmed by the Workers' Compensation Board (Board) and the Court of Appeals, an Administrative Law Judge (ALJ) determined that the services were unrelated to the pneumoconiosis and, therefore, were not compensable. We affirm.
The claimant's last exposure to coal dust occurred on June 4, 1983. Relying on unspecified evidence from Drs. Anderson, Bangudi, Bassali, Long, Potter, and White, the "old" Board determined that he was totally disabled by pneumoconiosis due to his occupational exposure to coal dust. Among other things, the opinion and award required the employer to pay "such medical, surgical and hospital expenses as may be reasonably required for the treatment of his occupational disease."
On April 11, 2002, the employer moved to reopen in order to resolve a dispute regarding whether treatment by various medical providers was related to the claimant's occupational disease. KRS 342.125 ; Westvaco Corporation v. Fondaw, 698 S.W.2d 837, 839 (Ky. 1985). Attached to the motion was a Utilization Review report from Drs. Goldstein and McConnel. The motion was granted to the extent that the parties were permitted to take additional proof.
The employer submitted evidence from Drs. Goldstein, McConnel, and Broudy. Dr. Goldstein's report indicated that the claimant's present difficulties and resulting medical treatment were related to chronic obstructive pulmonary disease (COPD) that was due to cigarette smoking. He did not think that the pneumoconiosis required any further treatment. A report from Dr. McConnel noted that the claimant had a long history of chronic bronchitis and underlying COPD and stated that although the medical treatment was necessary and appropriate, it was not related to his black lung disease.
Dr. Broudy examined the claimant on the employer's behalf and conducted diagnostic testing, after which he prepared a report and was deposed. The report indicated that the claimant was exposed to coal dust while working underground for two years, running a buggy, and for about 15 years on the surface, running heavy equipment. He quit in 1983 due to a back injury. He had smoked half a pack of cigarettes daily for 37 years before quitting in about 1991. In Dr. Broudy's opinion, the claimant did not suffer from pneumoconiosis or any other chronic disease caused by the inhalation of coal dust, but he did have a severe obstructive respiratory impairment due to pulmonary emphysema from cigarette smoking. Dr. Broudy stated that the disputed medical services were related to the latter condition.
When deposed, Dr. Broudy testified that the claimant had a history of cigarette smoking sufficient to cause his respiratory impairment and that the impairment responded to bronchodilation, which would not have occurred if it had been due to pneumoconiosis. He stated that if the impairment were due to pneumoconiosis, the condition would have been evident on the claimant's x-rays, but it was not. Dr. Broudy stated that pneumoconiosis and emphysema were two entirely different conditions. When direc
Page 1 2 3 Kentucky Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|