OPINION ENTERED: FEBRUARY 24, 2010
CLAIM NO. 1999-87201
MOUNTAIN WATER DISTRICT PETITIONER
VS. APPEAL FROM HON. OTTO DANIEL WOLFF, IV,
ADMINISTRATIVE LAW JUDGE
JAMES T. SMITH, ET AL,
and HON. OTTO DANIEL WOLFF, IV,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION VACATING
AND REMANDING
* * * * * *
BEFORE: ALVEY, Chairman; COWDEN and STIVERS, Members.
ALVEY, Chairman. Mountain Water District (“Mountain”) seeks review of a decision rendered October 12, 2009, by Hon. Otto Daniel Wolff, IV, Administrative Law Judge (“ALJ”), in a post-award medical dispute finding in favor of James T. Smith (“Smith”). The ALJ determined that certain proposed treatments involving Smith’s cervical and lumbar spine, including an anterior cervical discectomy and cervical fusion surgery at C4-5 and C5-6, proposed by Dr. Phillip Tibbs to be work-related and reasonable and necessary. In so ruling, the ALJ expressly relied on a response in the form of a medical report dated January 13, 2009, independently filed into the record by Dr. Tibbs, who was made a party to the medical dispute. It is undisputed that at no time prior to the ALJ’s decision was the January 13, 2009 medical report served on any of the parties other than the ALJ, nor were the remaining parties aware of its inclusion as evidence in the record. Mountain also appeals from an order issued December 1, 2009, denying its petition for reconsideration.
On appeal, Mountain argues that the January 13, 2009 medical report from Dr. Tibbs was never properly introduced as evidence into the record and, as such, it was error for the ALJ to rely on the report in rendering his opinion. Mountain maintains that “however liberally the rules for practice and procedure in a workers’ compensation proceeding may be construed, it goes without saying that the litigants are, at the very least, entitled to know the evidence that will be considered in the determination of the claim.” We vacate and remand.
On March 26, 1999 and April 1, 1999, Smith was involved in two separate work-related automobile accidents, during which he sustained injuries to his head, neck, right shoulder and low back. Smith filed a workers’ compensation claim with regard to both accidents on January 19, 2000. His claim was supported by a Form 107 Medical Report dated December 17, 1999 from Dr. James Templin, who diagnosed Smith with chronic cervical pain with mild cervical radiculopathy, right shoulder and arm pain, and low back pain, as well as degenerative cervical and lumbar disc disease. Pursuant to the AMA Guides to the Evaluation of Permanent Impairment, Dr. Templin assessed Smith as having a 5% whole person impairment rating relative to his cervical spine complaints that was work-related.
By agreement approved by Arbitrator Kevin King on June 12, 2000, the parties settled Smith’s claim based on a lump sum payment of $1,852.38. As part of the settlement, Mountain agreed to remain liable for all related medical expenses pursuant to KRS 342.020.
On December 18, 2008, Mountain filed a verified motion to reopen and Form 112 Medical Dispute contesting the treatment and surgery recommended by Dr. Tibbs. As part of the motion to reopen, Mountain requested that Dr. Tibbs, as the medical provider, be joined as a party to the medical dispute.
Attached as exhibits to the motion to reopen was: 1) an x-ray report from Dr. Dennis Halbert dated December 1, 1999, diagnosing the presence of degenerative changes of the lumbar spine from L2 through L5; 2) a cervical MRI report from Dr. William Kendall dated September 5, 2007, diagnosing a disc herniation at C3-4, and diffuse annular bulging with moderate to severe foraminal stenosis from C4 through T1; 3) a cervical myelogram report from Drs. Xuan V. Nguyen and Steven Goldman dated February 13, 2008 diagnosing degenerative disc disease and filling defects involving C4-5 and C5-6 on the right; and 4) a treatment note from Dr. Tibbs dated October 24, 2007, diagnosing amputated nerve roots at C4-5 and C5-6 on the right and recommending cervical fusion surgery at those levels. By separate pleading also filed on December 18, 2008, Mountain introduced into evidence utilization review reports from Drs. Richard F. Mortara and Kimberly Bingaman.
On November 11, 2008, Dr. Mortara conducted a review of Smith’s medical records. Dr. Mortara compared the results of a cervical MRI performed April 21, 1999 with a cervical MRI performed on September 5, 2007. He also reviewed Dr. Tibbs treatment notes from October 2007 and February 2008. Dr. Mortara stated that in his opinion, based on the records provided, the fusion surgery recommended by Dr. Tibbs at C4-5 and C5-6 within reasonable medical probability was not “directly related to the work injury of 4/1/1999.”
Dr. Bingaman conducted a separate review of Smith’s medical records on December 1, 2008. Dr. Bingaman concluded:
The recent diagnostic findings and need for surgery do not appear to be related to the 04/01/[1999] injury, based on the submitted documentation. The present condition is much more likely related to the ongoing degenerative process associated with aging. The claimant’s neurological examination was normal in 1999, and has now changed. This is very unlikely due to the injury that occurred in 1999. He likely has increasing degenerative changes accounting for his symptoms and findings, rather than their [sic] being due to a traumatic event that occurred 9 years ago.
Thereafter, the motion to reopen and medical dispute came before ALJ James L. Kerr for review on the regular Frankfort motion docket. ALJ Kerr ordered Dr. Tibbs be joined as a party to the medical dispute and granted Smith and Dr. Tibbs twenty days from and after the order in which to file a response. All parties, including Dr. Tibbs, were served with a copy of ALJ Kerr’s order.
In response to the above order, by letter dated January 13, 2009, Dr. Tibbs wrote personally to ALJ Kerr at the Department of Workers’ Claims in Frankfort. In that correspondence, Dr. Tibbs outlined Smith’s medical history and explained his opinions as to why the recommended fusion surgery was both work-related and reasonable and necessary. Specifically, Dr. Tibbs stated:
We received your ORDER granting twenty (20) days in which to report information relevant to the case of Mr. James T. Smith. Mr. Smith was referred to me by Dr. Ahmad, a neurologist in Pikeville. I do not take referrals from attorneys or seek cases in litigation, but I do make medical evaluations as part of my practice at the University of Kentucky. This patient presented with a history of a work-related motor vehicle accident on April 1, 1999. Thereafter, he reported continuing neck pain with intermittent arm radiation. He had required medical care for several years including pain management techniques, diagnostic studies, medications and other therapies. Unfortunately, his problem progressed. He tried to continue working doing electrical work, but had exacerbation of pain in 2004 that prevented his return to work. It is medically probable that at that time the patient developed herniation of a previously injured disc. When I studied him with cervical mylelography, where we inject dye into the spine to determine whether a nerve root is compressed, we did indeed find objective evidence of disc herniation with nerve entrapment at C4-C5 and C5-C6 on the right. The appropriate medical treatment is direct surgical decompression, not only to relieve pain, but to restore function of the arm.
Clearly, this case is somewhat complex in that it is medically probable that this patient has degenerative disc disease. This would exist apart from any injury. However, when traumatic injury occurs in a patient with degenerative disc disease, the patient is unfortunately more vulnerable to complications including herniation causing pain and nerve entrapment. It is my opinion that the injury of April of 1999 was a significant contributing factor leading to progression of disc deterioration, ultimately nerve entrapment. This was exacerbated by occupational exposure in 2004.
The above correspondence from Dr. Tibbs was not accompanied by a formal pleading containing a certificate of service. Moreover, the letter on its face does not signify that courtesy copies were sent to any other persons. After its receipt by the Department of Workers’ Claims, the letter was placed into the record, with no official notice being provided to any of the litigants.
On February 19, 2009, Mountain filed a second Form 112 Medical Dispute additionally challenging Smith’s ongoing treatment at the Pain Management Center in Pikeville, Kentucky, and a series of transforaminal epidural steroid injections being administered by Dr. Brendon Coughtry. As grounds for the dispute, Mountain again cited to its reliance on the medical reports previously submitted from Dr. Mortara and Dr. Bingaman.
The second medical dispute filed by Mountain subsequently came before ALJ J. Landon Overfield for review on the regular Frankfort motion docket. By order issued February 18, 2009 the Pain Management Center in Pikeville, Kentucky was joined as a party to the proceedings. Dr. Tibbs, already a party to the proceedings, was not served with a copy of the order.
On March 27, 2009, both medical disputes were ordered assigned to ALJ Wolff for purposes of scheduling additional proof time and a decision on the merits. All parties were served with a copy of the order.
On June 15, 2009, Smith filed Dr. Tibbs’ treatment notes from October 24, 2007 and February 13, 2008 into evidence. In both records, Dr. Tibbs recorded a history of Smith’s work-related motor vehicle accident from 1999 and the fact that he had continued to experience neck and arm pain since that time. In the last note, Dr. Tibbs stated that conservative treatment measures had been unsuccessful and that fusion surgery was an option. In neither record, however, did Dr. Tibbs directly address the question of work-related causation.
The final hearing was held on August 26, 2009. During that proceeding, the ALJ on the record completed an order of submission confirming the evidence intended by the parties for his consideration. The following discussion transpired between the ALJ and the parties’ lawyers at that time:
BY HON. OTTO DANIEL WOLFF, IV, ADMINISTRATIVE LAW JUDGE:
This is in case number 1999-87201, titled James T. Smith versus Mountain Water District, et al. Who will the plaintiff – Who will be your witnesses today? Mr. Smith?
MR. DOWNEY:
Just Mr. Smith.
JUDGE WOLFF:
Okay.
MR. DOWNEY:
And we submitted Phillip Tibbs by his records.
JUDGE WOLFF:
Wait just a second, let me get to that line. Okay. What items have you filed that you would like for me to consider –
MR. DOWNEY:
Dr. Tibbs.
JUDGE WOLFF:
Is that a report or –
MR. DOWNEY:
Yes, his . . . his office notes and treatment and things like that.
JUDGE WOLFF:
Anything else?
MR. DOWNEY:
That’s it.
JUDGE WOLFF:
For the Defendant?
MS. McGUIRE:
We don’t have any witnesses, Your Honor. We rely on the reports of Dr. Mortara and Dr. Bingaman.
Following Smith’s testimony at the final hearing, ALJ Wolff ordered concurrent briefs to be filed by the parties by September 18, 2009, summarizing the evidence and setting out their arguments. In those briefs before the ALJ, neither Smith nor Mountain made any reference to Dr. Tibbs’ letter of January 13, 2009, or to the information and opinions concerning causation contained therein.
In the decision on the merits, the ALJ Wolff found the treatment at issue concerning Smith’s neck and low back to be compensable, and dismissed Mountain’s motion to reopen in toto. The ALJ relied primarily on the causation testimony provided by Dr. Tibbs in his January 13, 2009 letter as the basis for his conclusion that Smith’s neck condition was work-related. The ALJ stated in pertinent part:
The ALJ is persuaded by the proof provided by Dr. Tibbs that Plaintiff’s need for surgery is in large part due to the work injuries of 1999. This ALJ is so persuaded because only Dr. Tibbs has had the opportunity to see and treat Plaintiff on several occasions. No matter how many records one can review, there is nothing better than observation in formulating medical opinions. Dr. Tibbs plainly says, “it is my opinion that the injury of April, 1999 was a significant contributing factor leading to the progression of disc degeneration, ultimately with nerve entrapment.
Neither Dr. Tibbs nor the Pain Management Center, as parties to the medical dispute, was served with copies of the ALJ’s decision.
In response to the above ruling, Mountain filed a petition for reconsideration contending Dr. Tibbs’ January 13, 2009 letter was never properly introduced into evidence, and as such the medical dispute regarding the cervical fusion surgery should have been resolved in its favor.
By order issued December 1, 2009, the ALJ denied Mountain’s petition. As grounds, the ALJ cited to his conversation on the record with Smith’s lawyer at the final hearing generally designating Dr. Tibbs “office notes and treatment” as evidence. The ALJ, however, acknowledged the following:
Dr. Tibbs is a named party to this litigation. A review of the January 13, 2009 letter indicated it was received by the Department of Workers’ Claims on January 21, 2009 at 2:03 PM. It was filed and made a part of the records on March 25, 2009 at 12:53 PM. Having been twice stamped by the Department’s Data Entry Section this ALJ assumed the letter was a part of the record. There is no indication on the submitted letter that it was served upon opposing counsel or any of the other parties to this litigation.
Again, neither Dr. Tibbs nor the Pain Management Center, as parties to the medical dispute, were served with copies of the ALJ’s December 1, 2009 order.
It has long been accepted that the ALJ, as fact finder, has the authority to control the taking and presentation of proof in a workers’ compensation proceeding, and it is not unreasonable for an ALJ to either permit additional proof to be presented or prohibit evidence in order to maintain a reasonable element of administrative due process. See Dravo Lime Co., Inc. v. Eakins, 156 S.W.3d 283 (Ky. 2005); Yocum v. Butcher, 551 S.W.2d 841 (Ky.App. 1977); Cornett v. Corbin Materials, Inc., 807 S.W.2d 56 (Ky. 1991); Searcy v. Three Point Coal Co., 280 Ky. 683, 134 S.W.2d 228 (1939). Moreover, one of the cardinal purposes of the Act is to facilitate the speedy resolution of claims, and the ALJ is charged with the duty to determine all disputes in a summary manner. Searcy v. Three Point Coal Co. at 231. By contrast, in discharging rulings as both gatekeeper of the record and fact finder, an ALJ may not act in an arbitrary or unreasonable manner such as to indicate an abuse of discretion. Yocum v. Butcher at 844.
That having been said, we agree with Mountain that a decision by an ALJ may not turn on evidence of which only the ALJ and one of the parties, in this instance Dr. Tibbs, were aware was of record. Under such circumstance, to permit the ALJ’s decision to stand would constitute a violation of the administrative due process rights of the remaining parties. Union Underwear Co., Inc. v. Scearce, 896 S.W.2d 7 (Ky. 1995). Since Dr. Tibbs’ letter of January 13, 2009 was not properly served on either Mountain or Smith, and neither of those parties appear to have been aware of its inclusion in the record prior to the ALJ opinion, the decision of October 12, 2009 must be vacated and this matter remanded for further proceedings.
Conversely, we note that nowhere in its petition for reconsideration before the ALJ or its brief before this Board does Mountain disavow having knowledge of the January 13, 2009 letter’s existence outside the record while this matter was being litigated prior to ALJ Wolff’s ruling on the merits of the medical dispute. Mountain merely confines its protests to the fact that procedurally the evidence provided directly by Dr. Tibbs in answer to ALJ Kerr’s order that he file a response to the motion to reopen was never properly introduced.
Our courts of justice have long recognized that every workers’ compensation case is a quest for truth that should be decided on its merits rather than on the basis of procedural gamesmanship. Nucor Corp. v. General Electric Co., Ky., 812 S.W.2d 136 (1991). Moreover, administrative due process requires that cross-examination be guaranteed. Union Underwear Co., Inc. v. Scearce, 896 S.W.2d 7 (Ky. 1995). Cross-examination is “a time-tested and unique method of assisting in the quest for truth.” Kaelin v. City of Louisville, 643 S.W.2d 590, 592 (Ky. 1982). Where important decisions turn on questions of fact, due process requires an opportunity to fully confront and cross-examine adverse witnesses. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Kaelin v. City of Louisville at 591-592. There must be the opportunity to demonstrate the incompleteness, the untruth, the partiality or any other weakness or defect in the testimony of a witness. Kaelin v. City of Louisville at 592. “Without such opportunity, the search for truth may very well be impeded and restricted.” Id.
Considering the narrowness of the arguments presented and taking into account the above policy considerations, we are unconvinced that, in the interest of achieving a fair and just resolution in this case, Dr. Tibbs’ letter of January 13, 2009 should be wholly excluded from further proceedings. Consequently, on remand the ALJ is instructed to individually serve by separate order a copy of Dr. Tibbs’ January 13, 2009 letter on all parties, after which the letter shall be considered to have been properly introduced into evidence. Thereafter, the ALJ shall issue an order reopening proof time for all parties for a reasonable period to be determined within the ALJ’s discretion, and the parties shall be permitted to introduce any additional evidence deemed appropriate and necessary pertaining to all issues originally contested including, but not limited to, the testimony of Dr. Tibbs, whether by additional medical report or by deposition on direct and/or cross-examination. Upon the close of proof time, this matter shall then be resubmitted for a written decision on the merits by the ALJ, which shall be served on all named parties to the medical dispute. See KRS 342.285
Accordingly, the decision rendered October 12, 2009, by Hon. Otto Daniel Wolff, IV, Administrative Law Judge, is hereby VACATED and this matter is REMANDED for further proceedings in accordance with this opinion.
ALL CONCUR.
COUNSEL FOR PETITIONER:
HON. JEFFREY DAMRON
PO BOX 351
PIKEVILLE, KY 41502
COUNSEL FOR RESPONDENT:
HON. ROY J. DOWNEY
P O BOX 3850
PIKEVILLE, KY 41502
COUNSEL FOR RESPONDENT:
HON. RACHAEL WATTS
P O BOX 1439
PIKEVILLE, KY 41502
ADMINISTRATIVE LAW JUDGE:
HON. OTTO DANIEL WOLFF
8120 DREAM STREET
FLORENCE, KY 41042
ADDITIONAL PARTIES:
DR. PHILLIP TIBBS
UK HOSPITAL
800 ROSE STREET, ROOM MS 107
LEXINGTON, KY 40536
