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Workers’
Compensation Board
OPINION
ENTERED: October 17, 2014
CLAIM NO. 200780468 & 200695103
INTERNATIONAL COAL GROUP PETITIONER
VS. APPEAL FROM HON. JOHN
B. COLEMAN,
ADMINISTRATIVE LAW JUDGE
BERT KILBURN
HON. JOHN B. COLEMAN,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. International Coal Group (“ICG”) appeals from
the Opinion and Order rendered June 4, 2014 by Hon. John B. Coleman,
Administrative Law Judge (“ALJ”) resolving a post-award medical fee dispute in
favor of Bert Kilburn (“Kilburn”). The
ALJ found the disputed opioid medications, Oxycodone and Tramadol, prescribed
by Dr. Warren G. Stumbo reasonable and necessary for the cure and relief of
Kilburn’s work injury, and therefore compensable. ICG also seeks review of the July 8, 2014
Order denying its petition for reconsideration.
On appeal, ICG
essentially argues the ALJ erred in finding the contested medication
compensable since Dr. Stumbo could be prescribing them to treat an unrelated
knee injury. Because substantial
evidence supports the ALJ’s determination, and no contrary result is compelled,
we affirm.
On October 8, 2007,
Kilburn filed a Form 101 alleging injuries to his “back, head, neck, arms,
legs, shoulders and a psychological claim” when he picked up a piece of metal
on February 8, 2006 while working for ICG as a welder. Kilburn disclosed he had previously received
a lump sum settlement for a work-related left knee injury occurring on May 14,
2002. The Form 101 was later amended to
include a second injury date of August 3, 2007.
In an April 27, 2009 Opinion, the ALJ found Kilburn’s complaints were
caused by the February 8, 2006 work injury.
The ALJ found Kilburn’s lumbar condition causally related to the
February 8, 2006 work event which was aggravated by the August 2, 2007 incident,
causing no additional structural changes.
The ALJ also found Kilburn’s depression was work-related. The ALJ awarded benefits based upon a 6%
impairment rating for Kilburn’s lumbar injury and a 15% impairment rating for
his psychological condition, yielding a combined 20% impairment rating. The ALJ awarded permanent partial disability
benefits increased by the three multiplier, temporary total disability
benefits, and “reasonable and necessary medical expenses for the cure and
relief of his lumbar spine injury and major depressive disorder pursuant to KRS
342.020.” Neither party appealed the
ALJ’s decision.
On March 4, 2010, ICG
filed a motion to reopen and a Form 112 medical fee dispute challenging ongoing
prescription medication prescribed by Kilburn’s treating physician, Dr. Stumbo,
including Tramadol, Skelaxin, Gabapentin, and Endocet. In an Opinion and Order rendered October 18,
2010, Hon. R. Scott Borders, Administrative Law Judge (“ALJ Borders”) found the
disputed medications compensable relying upon Dr. Stumbo’s opinions. ALJ Borders found Kilburn continued to
receive relief from the effects of his February 8, 2006, work-related injury as
a result of Dr. Stumbo’s care, and therefore his treatment was reasonable and
necessary pursuant to KRS 342.020.
On October 21, 2011,
Kilburn filed a motion to reopen alleging a worsening of his lumbar
condition. In a June 11, 2012 Opinion
and Order, Hon. Douglas W. Gott, Administrative Law Judge (“ALJ Gott”) found
Kilburn failed to prove his condition had worsened and overruled his motion to
reopen. This Board affirmed in an
opinion rendered November 9, 2012.
The current motion to
reopen and Form 112 medical fee dispute were filed by ICG on October 21,
2013. It again challenges the medication
regimen prescribed by Dr. Stumbo, Oxycodone (Percocet) and Tramadol (Ultram),
based upon the utilization review reports of Dr. Leon Ensalada and Dr. Suzanne
Novak. In an order dated November 6,
2013, ALJ Gott concluded ICG made a prima
facie showing for reopening, and he sustained the motion to reopen. Dr. Stumbo was joined as a party. In the order, ALJ Gott stated the claim would
be transferred to the ALJ at the end of the year.
A benefit review
conference (“BRC”) was held on January 27, 2014. The BRC order reflects the only contested
issue to be determined is the reasonableness/necessity of opioid medication,
including Oxycodone and Tramadol.
Causation was not listed as a contested issue.
In support of its
motion to reopen, ICG filed treatment records of Dr. Stumbo from January 16,
2013; March 26, 2013; May 28, 2013; and July 29, 2013. Dr. Stumbo performed an examination on each
visit, and regularly prescribed Percocet and Ultram. In the most recent note dated July 29, 2013,
Dr. Stumbo noted Kilburn complained of “LBP WITH LEFT LEG RADICULOPATHY, STATES
OCC HE CAN’T FEEL HIP LEFT LEG AND FELL LAST WEEK . . . LONG STANDING WORK
RELATED INJURY TO BOTH BACK AND KNEES OVERALL STABLE WITH PEROIDS (sic) OF
FLARE-UP.” He examined Kilburn’s back
and observed “DECREASED ROM, BILATERAL PARASPINAL TENDERNESS DTR2+ VIBRATORY OK
NEG ST. LEG TEST.” He assessed Kilburn
with a stable work-related injury to back and knees. He also stated Kilburn is totally and
permanently disabled, and reviewed his current medications including Percocet
and Ultram.
ICG also filed the
October 2, 2013 utilization review (“UR”) report of Dr. Ensalada who opined
Kilburn’s current medication regimen of Oxycodone and Tramadol is not medically
reasonable or necessary. Dr. Ensalada
noted Kilburn was injured over seven years ago and the medical records do not
support a diagnosis of radiculopathy. At
most, Kilburn sustained a lumbar strain/sprain from the February 8, 2006 work
event. After reviewing Kilburn’s
prescribed dosages of Oxycodone (Percocet) and Tramadol (Ultram), he calculated
the current morphine equivalent dose to 90 to 110 mg per day. He concluded Kilburn’s morphine equivalent
dose places him at substantial risk for death from prescription opioid
overdose, opioid induced hyperalgesia, and opioid induced androgen
deficiency. Dr. Ensalada opined Kilburn
is likely experiencing the complications of opioid induced hyperalgesia due to
his long term exposure to high doses of such medication. He also stated the risks of continuing the
chronic opioid therapy far outweigh any benefits. Dr. Ensalada concluded Kilburn’s opioid
medication should be tapered and ultimately discontinued. Kilburn appealed the UR denial of Dr.
Ensalada.
Dr. Suzanna Novak
prepared a report on October 22, 2013 after reviewing medical records. She expressed her concern there was no
evidence of a KASPER report, urine drug screen or addition screen. She concluded Dr. Stumbo’s records do not
comply with the Kentucky HB 1 legislation, which requires a practitioner to
review the course of treatment at reasonable intervals, provide patients with
any new information about treatment, obtain KASPER at least once every three
months, and review a KASPER report before issuing any prescriptions or refills
for these substances. Dr. Novak
concluded until the above information can be provided, opioids of any kind
should not be authorized. Dr. Novak also
recommended a random urine drug screen, addiction screen, evidence of a drug
treatment agreement and pill counts. Dr.
Novak recommended Tramadol and Oxycodone be discontinued if the above
referenced monitoring information is not provided within one to two months.
Kilburn filed
additional treatment records of Dr. Stumbo from December 12, 2011 through
December 10, 2013. Those records reflect
Kilburn visited Dr. Stumbo on twenty-eight occasions during this three year
time period for treatment related to his work-related back injury, as well as
several unrelated conditions. The
records consistently note complaints of lower back pain. Kilburn also complained of knee pain on
several occasions. The record indicates
Dr. Stumbo regularly performed examinations, reviewed Kilburn’s medication
regimen, and prescribed Ultram and Percocet.
He generally assessed long standing stable back/knee injury with
occasional flare ups. In the most recent
visit on December 10, 2013, Dr. Stumbo noted Kilburn complained of low back
pain “all the time” and right foot cramps.
He examined Kilburn and reviewed his current medications, including
Ultram and Percocet. Dr. Stumbo stated
“PT STABLE NO NEED FOR NEW TEST. ALL
WORK RELATED BACK WORSE BUT KNEES ALSO A PROBLEM. PT NOT LIKELY TO EVER BE ABLE TO RESUME FULL
OR PARTTIME WORK.”
Kilburn also filed a
letter prepared by Dr. Stumbo on March 7, 2014.
It stated as follows:
After
many months of responding about Mr. Kilburn’s work related injuries, it is hard
for me to find any new way to restate his current medical condition.
First,
despite the fact that he is a Diabetic, has heart disease with stable Angina
and lung disease with symptoms that usually require most of my time with the
patient.
Secondly,
if Bert Kilburn had no other problems but his back and knee problems only,
which are related to his long work history along with several acute injuries
these two problems by themselves would make him totally and permanently
disabled.
What
are my plans? Hopefully, not having to
respond in a case that has used more of my time over the last two years than is
necessary.
Currently,
with the medications:
1. His quality of life has improved
2. His pain has been reduced
3. His ability to be mildly active has improved
4. He has had no adverse side effects
5. His anxiety and worry about his life-status
has been reduced.
Compensation
has his case reviewed by a physician that restate facts out of the literature
about medication that while helpful to him they do not wish to pay for. The facts that they state do not replace the
clinical judgment of the treating physician.
It
is possible that medical management will continue to work for years. However, surgery may very well be needed on
his knees. I don’t see any need for CTS
or back surgery now or in the near future.
Kilburn also testified
at the final hearing held on April 16, 2014.
He stated Dr. Stumbo has been his primary care physician for
approximately twenty-nine years and treated him following his work injuries in
2006 and 2007. He sees Dr. Stumbo every
two months. On each visit, Dr. Stumbo
performs an examination, discusses his condition, and reviews his
mediations. Dr. Stumbo asks if the
prescribed medications provide relief and adjusts his dosages accordingly. Kilburn testified he has several unrelated
health problems, including diabetes and a heart condition, which Dr. Stumbo
treats, in addition to his pain.
Kilburn testified his
pain has improved since his work accidents, but he still loses his balance and
falls. The pain medication he takes for
his work injury is beneficial. He can
tolerate his pain level and stated “if I didn’t take it there I wouldn’t even
probably get out of bed. I mean, it - -
my back bothers me so bad. . .” His pain
medication enables him to do things around the house. Kilburn confirmed he takes Tramadol which
also provides relief. He stated “Yes,
them - - it and the Percocets and the Skelaxin all three together, I can tell,
you know, it makes my back to where it’s not - - don’t hurt as bad, but I still
got pain, but I can . . . move around.”
Kilburn agreed the pain medicine and muscle relaxer helps him keep
moving, and stated he can tell when they wear off.
Kilburn testified he
uses a cane due to fluid in his right knee.
He had previously undergone surgery on his left knee and surmised he has
overused his right knee, causing swelling and fluid.
On cross-examination,
Kilburn testified as follows when asked how long he been taking Percocet
A: I took them two years while I was working,
and - - well about nine years, now.
Q: So, you
were taking Percocet back - - back while you were still working?
A: For two
years. I hurt my back. I went back to work there, but Dr. Stumbo
took me off work and made me quit work.
I never could get nothing straightened out with Workers’ Comp, so I went
over there and begged him to let me go back, and he said I could go back pending
an MRI on my back. They never did - -
done the MRI on my back and I messed it up - - I had the heart attack and
messed it up with a sledge hammer that last time swinging. And, they finally done one and he wouldn’t
let me go back to work then.
Kilburn also explained he had left knee surgery approximately four
years before he stopped working. He indicated another surgery on his left knee
was required after the 2006 work incident, but was not covered by worker’s
compensation. He also stated his left
foot was smashed and he broke five bones while working. However, his foot and left injuries are
unrelated to the 2006 work incident related to his lower back.
After providing a
detailed summary of the medical and lay evidence, the ALJ determined the continued medication
regimen, including Oxycodone and Tramadol, offered by Dr. Stumbo is reasonable
and necessary for the cure and relief of Kilburn’s work injury, stating as
follows:
In this case, the defendant
is once again contesting the medication regimen prescribed to the plaintiff by
his treating physician, Dr. Grady Stumbo.
Dr. Stumbo was treating the plaintiff's lower back pain with Percocet
and Ultram. While the defendant has
offered opinions from two physicians who felt there was no need for continued
narcotic medications, the treating physician has offered the opinion the
medications are being prescribed to relieve the plaintiff from his long term
pain and the medication regimen has improved his quality of life and reduced
his pain. While the opinions of the
evaluating and reviewing physicians indicate the possibility of dangerous side
effects after long term usage, I note that Dr. Stumbo is the plaintiff's
treating physician who is in charge of his care and, as such, is in the best
position to determine whether the plaintiff is at risk for such ill side
effects.
In 2010, the defendant previously questioned
the medication regimen being prescribed by Dr. Stumbo. At that time, the plaintiff was on more
medications including Tramadol, Skelaxin, Gabapentin and Endocet. At that time, Dr. Novak offered the opinion
herein and also felt the plaintiff should not be on any of these
medications. However, at that time, Dr.
John Vaughn noted the Percocet which he was taking would be reasonable. After hearing the evidence before him at that
time, the Administrative Law Judge found the medication regimen to be
reasonable and necessary for the cure and/or relief of the plaintiff's work
injury. At the current time, the undersigned
is[sic] has not seen much difference in the treatment regimen which according
to the plaintiff continues to the helpful.
The treating physician has indicated there are no adverse effects at the
current time. Therefore, I am convinced
the continued medication regimen offered by the treating physician is
reasonable and necessary for the cure and relief of the plaintiff's work
injury.
Dr. Novak indicated she believed that there
were non-compliance issues with current law on the part of the provider, but
the undersigned only has jurisdiction to determine whether the ultimate
treatment provided to the plaintiff is reasonable, necessary and compensable
under KRS 342.020. Therefore, technical
compliance with HB 1 is not an issue for this forum.
ICG filed a petition
for reconsideration raising the same arguments it now makes on appeal. ICG did not request any additional findings
of fact, but instead argued the evidence compels a finding in its favor. The ALJ denied ICG’s petition on July 8,
2014.
On appeal, ICG argues
the medical dispute should have been resolved in its favor given the concerns
raised by Drs. Ensalada and Novack, and the failure of Dr. Stumbo to specify
what treatment is for Kilburn’s work-related back injury. ICG asserts Dr. Stumbo’s treatment regimen is
aimed both at Kilburn’s back and unrelated knee problems. ICG asserts the ALJ did not address Kilburn’s
testimony indicating he has been taking Percocet since approximately two years
before he stopped working and his unrelated knee problems started four years
prior to his cessation of work. ICG
states it is not responsible for treatment related to Kilburn’s knee and Dr.
Stumbo’s letter does not specify what medication is for his knee and what
medication is for his low back.
Despite the seemingly inconsistent decision
rendered by the Kentucky Supreme Court in the unreported decision from the Kentucky Supreme Court, C & T Hazard v.
Chantella Stallings, et al., 2012-SC-000834-WC, 2013 WL 5777077 (Ky. 2013),
a
long line of reported decisions establish that in a post-award medical fee
dispute, the employer bears both the burden of going forward and the burden of
proving entitlement to the relief sought, except that the claimant bears the
burden of proving work-relatedness. National Pizza Company vs. Curry,
802 S.W.2d 949 (Ky. App. 1991); Snawder v. Stice, 576 S.W.2d 276 (Ky.
App. 1979); Addington Resources, Inc. v. Perkins, 947 S.W.2d 421 (Ky.
App. 1997); Mitee Enterprises vs. Yates, 865 S.W.2d 654 (Ky. 1993); Square
D Company v. Tipton, 862 S.W.2d 308 (
As fact-finder, the ALJ
has the sole authority to determine the quality, character, and substance of
the evidence. Square D Co. v. Tipton,
862 S.W.2d 308 (Ky. 1993); Paramount Foods, Inc. v. Burkhardt, 695
S.W.2d 418 (Ky. 1985). As fact-finder,
the ALJ may reject any testimony and believe or disbelieve various parts of the
evidence, regardless of whether it comes from the same witness or the same
adversary party's total proof. Magic
Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000).
Although a party may note evidence that would have supported a different
outcome than that reached by ALJ, such proof is not an adequate basis to
reverse on appeal. McCloud v.
Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974). It must be shown that there was no evidence
of substantial probative value to support the decision. Special Fund v. Francis, 708 S.W.2d
641 (Ky. 1986).
In
this post award medical dispute, substantial evidence supports the ALJ’s
determination of compensability, and no contrary result is compelled. The ALJ provided a detailed summary of the
facts, and the basis for his decision.
Based upon the record, the ALJ could reasonably conclude Percocet and Ultram are
reasonable and necessary for treatment of Kilburn’s work-related low back
condition. In making his determination,
the ALJ relied upon Dr. Stumbo’s opinion and the previous opinion rendered October 18, 2010 by ALJ Borders finding the same medication
compensable.
Dr. Stumbo’s treatment
records indicate he regularly prescribed Ultram and Percocet after Kilburn
consistently complained of low back and left leg pain. The records also indicate Kilburn complained
of knee pain. In the March 7, 2014
letter prepared by Dr. Stumbo, he emphasized he treats Kilburn for many
conditions, including his low back and knees.
He opined Kilburn’s medications have improved his quality of life,
reduced his pain, improved his ability to be mildly active, reduced his anxiety
and worry, and have had no adverse side effects. He also set forth possible future treatment
for Kilburn, including surgery for his unrelated knee problem. However, he does not foresee back surgery at
this time. Although an ALJ is not obligated to give more weight to the evidence of the
treating physician than to the evidence of others, Sweeney v. King’s
Daughters Medical Center, 260 S.W.3d 829, 830 (Ky. 2008), as fact-finder, he
or she may do so if they choose. The records and opinions of Dr. Stumbo, in addition to Kilburn’s
testimony regarding the effects of the medication regime on his back condition,
constitute the requisite substantial evidence upon which the ALJ can rely in
determining Percocet and Ultram are reasonable and necessary for the cure
and/or relief of Kilburn’s work injury.
The fact Dr. Stumbo
simultaneously treats Kilburn for other unrelated conditions, including his
knee problems, does not negate ICG’s obligation to pay the reasonable and
necessary medical expenses for the cure and relief of Kilburn’s his lumbar
spine injury and major depressive disorder pursuant to KRS 342.020. This conclusion is bolstered by the previous
opinion rendered by ALJ Borders in October 2010, resolving a medical dispute in
Kilburn’s favor. As noted by the ALJ,
ICG challenged the medication regimen prescribed by Dr. Stumbo. At that time, Kilburn was prescribed more
medication than now, including Endocet for pain, Tramadol an anti-inflammatory,
the muscle relaxer Skelaxin, and Gabapentin.
ALJ Borders ultimately found the disputed medications compensable since
Kilburn continued to receive relief from the effects of his February 8, 2006,
work-related injury as a result of Dr. Stumbo’s care.
Accordingly, the June
4, 2014 Opinion and Order and the July 8, 2014 Order denying ICG’s petition for
reconsideration by Hon. John B. Coleman, Administrative Law Judge, are hereby AFFIRMED.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON JEFFREY D DAMRON
PO BOX 351
PIKEVILLE, KY 41502
COUNSEL
FOR RESPONDENT:
HON THOMAS W MOAK
PO BOX 510
PRESTONSBURG, KY 41653
ADMINISTRATIVE
LAW JUDGE:
HON JOHN B COLEMAN
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
