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Workers’
Compensation Board
OPINION
ENTERED: November 13, 2015
CLAIM NO. 201299345
QUEST CARE, LLC PETITIONER
VS. APPEAL FROM HON. STEVEN
BOLTON,
ADMINISTRATIVE LAW JUDGE
CYNTHIA A. BRANHAM
DR. RACHEL SHORT
KENTUCKY PAIN PHYSICIANS
PIKEVILLE MEDICAL CENTER
RX DEVELOPMENT ASSOCIATES
DOCTORS MEDICAL
INJURED WORKERS' PHARMACY
and HON. STEVEN BOLTON,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
IN PART, VACATING IN PART,
AND
REMANDING
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* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Quest Care, LLC (“Quest Care”) seeks review of the June 21, 2013, Opinion,
Award, and Order finding Cynthia A. Branham (“Branham”) has a 7% impairment rating
as a result of a work-related low back injury occurring on January 3, 2012,
while in the employ of Quest Care. The
ALJ awarded temporary total disability (“TTD”) benefits, permanent partial disability
(“PPD”) benefits enhanced by the three multiplier pursuant to KRS
342.730(1)(c)1, medical benefits, and vocational rehabilitation benefits. Quest Care also appeals from the July 19,
2013, Order denying its petition for reconsideration.
Additionally, Quest Care appeals from the
March 4, 2015, Order on Remand resolving multiple medical fee disputes which it
filed during the pendency of the proceedings and the April 27, 2015, Order
ruling on its petition for reconsideration.
Quest Care’s appeal pertains to the ALJ’s ruling concerning the
compensability of Branham’s medication regimen.
Branham’s Form 101 alleged a lower back injury occurring on
January 3, 2012, and an adjustment disorder resulting from the work injury. Branham sought income benefits as a result of
a physical and psychological injury.
Branham later amended her Form 101 to include a claim for a December 29,
2011, lower back injury.
Quest Care raises four errors regarding the June 21, 2013,
decision. First, it contends the ALJ
applied an incorrect rate in calculating the award of PPD benefits. Second, Quest Care contends the ALJ erred in
not apportioning an impairment rating to a pre-existing active condition and
not entering findings of fact which correspond with the legal standard for
determining whether a pre-existing active condition was present. As a sub-part to its argument, Quest Care maintains
the ALJ failed to review all of the evidence of record. Third, Quest Care contends the ALJ erred in
relying upon the opinions of Dr. Bruce A. Guberman since his opinions do not
constitute substantial evidence. Fourth,
Quest Care asserts the ALJ erred in not performing an analysis pursuant to Fawbush
v. Gwinn, 103 S.W.3d 5 (Ky. 2003).
Concerning the ALJ’s 2015 decision resolving the medical fee disputes,
Quest Care asserts the ALJ erred in finding Branham’s medication regimen
reasonable and necessary treatment of her work injury as his decision is not
supported by substantial evidence.
Branham relied primarily upon the report and letter from
Dr. Guberman who assessed a 7% impairment rating attributable solely to the
January 3, 2012, injury. Quest Care
contended throughout the proceedings that any impairment rating was due to a
pre-existing active condition. Quest
Care relied upon the records of St. Joseph Hospital - Martin, spanning the
period from March 30, 2011, through June 8, 2011; the MRI report of June 1,
2011, from Highlands Regional Medical Center; the records of Dr. Duane Densler,
a neurosurgeon, concerning his examination of Branham on June 28, 2010; and the
opinions of Drs. William Lester and David Muffly.
Branham’s January 8, 2013, and March 6, 2013, depositions
were introduced and she testified at the March 26, 2013, hearing. During the hearing, she testified the
December 29, 2011, injury occurred when she was serving as a pall bearer at a
co-worker’s funeral. In the course of
unloading the casket at the cemetery, she felt a small twinge which lasted a
few days. Branham went to the emergency
room at Paul B. Hall Medical Center on January 1, 2012, which she indicated was
more for her blood pressure problem than her back problem.
Branham denied experiencing any low
back problems prior to the January 3, 2012, injury. Branham testified she had no work
restrictions or impairment before the January 2012 injury and any back pain she
experienced did not prevent her from working.
She was able to carry a medic bag which she estimated weighed fifty
pounds. It was not unusual for her to
carry several items at once. In the
course of working as an EMT, she lifted heavy patients onto gurneys. On multiple occasions, she and three other
co-workers would lift patients weighing as much as 350 pounds. At the time she went to work for Quest Care,
she was only taking blood pressure medication.
Branham provided the following testimony as to what happened when she
was injured on January 3, 2012:
A: we had gotten the call of a woman
having an asthma attack. It was up in MaGoffin [sic] County. And, my partner
and I got out there – and, a lot of times if we realize – the cot – the beds
themselves weigh two hundred or two hundred and fifty pounds just alone without
a patient on them – and, we were trying – usually, we’ll try to get the patient
to walk out and walk down the steps and get on the – the cots themselves (sic).
And, we couldn’t – she couldn’t do it; she was just too bad, so we put her on
the stretcher in the house. And, we had to carry her down the steps. And, my
partner was at the feet, he was going down first and I was at the head of the
cot, you know, went down last, and when I put my foot down on one of the steps
I – there was a patch of ice and I slipped, and when [sic] fell I went straight
down and every bit of her weight, which she was – she was about three hundred
and fifty, four hundred pounds – every bit of her weight and the cot, you know,
went on me. And, I had to, you know, try to keep the, -- I didn’t want to hurt
her and have the cot, you know, tip over and injure her, so I took all the –
all the weight on me, so …
Q: Okay – and, then what hurt?
A: My lower back, very bad.
Q: Okay – now, how was that pain on
January the 3rd? Was it any different than December the 29th
or any other back pain that you had had before?
A: Extremely different, extremely
worse. It was the worst – worst back pain I’ve ever had in my life, you know.
It was – it was unbearable. It still is unbearable.
Branham was immediately taken to the
emergency room at Paul B. Hall Medical Center.
When she returned to work she was limited to performing light duty. Because she could no longer sit performing
the light duty work, Branham quit work on February 14, 2012. She was referred by her treating physician to
physical therapy which was discontinued.
She was also referred to Kentucky Pain Physicians for pain
management.
At the March 2013 hearing, the parties agreed to bifurcate
the proceedings. Consequently, only
evidence concerning the injury claims would be introduced and the ALJ’s
decision would be limited to resolving the compensability of the alleged
injuries. It was agreed the ALJ would enter
a decision concerning the medical fee disputes at a later date.
The March 12, 2013, Benefit Review Conference Memorandum
Order (“BRC”) reflects the parties stipulated Quest Care received due and
timely notice of the January 3, 2012, injury for which it paid a period of TTD
benefits. Significantly, the parties
stipulated Branham returned to work on January 4, 2012, and worked until
February 14, 2012, at a wage equal to her average weekly wage (“AWW”).
Regarding Branham’s injury claims, the ALJ entered the
following analysis:
It
is accurate to argue, as does the Defendant employer, that Plaintiff has been
very forgetful of her prior medical history as it pertains to her back, but the
record does not support a finding that she suffered from a prior, active and
ratable impairment at the time of the work related injury. Indeed, the mere
fact that she was carrying one end of a 300-350 lb. woman on a stretcher that
itself weighed approximately 200 lb. when the accident occurred is
determinative of the question of her prior alleged disability.
The purpose of this history is to demonstrate that the Plaintiff
suffered a work related injury, timely reported same and actively sought relief
from her symptoms. A claimant’s own testimony is competent and of some
probative value. Caudill v. Maloney’s
Discount Stores, 560 S.W.2d 15 (Ky., 1977). In this instance, the
Defendant/Employer presented no non-medical evidence concerning the actual
occurrence, nor was there any attempt to impeach the veracity of the Plaintiff.
Thus, the ALJ is constrained to accept Plaintiff’s version of the facts as
being accurate.
While
the Plaintiff subsequently modified her Form 101 to claim a preceding injury on
December 29, 2011, it does not appear from the evidence that the injury was
substantial or resulted in anything but a temporary, non-disabling strain.
Clearly, the Plaintiff did not think it of enough significance to report to the
employer, except as an afterthought to explain why she was in a hospital
emergency room describing her low back pain just a few days before the incident
of January 3, 2012. I do not believe she had an active and ratable condition in
her lower back prior to the incident of January 3, 2012. To be characterized as
active, an underlying pre-existing condition must be symptomatic and impairment
ratable pursuant to the AMA Guidelines
immediately prior to the occurrence of the work related injury. Moreover, the
burden of proving the existence of a pre-existing condition falls upon the
employer. Finley v. DBM Technologies,
217 S.W.3d 261 (Ky. App., 2007). So, when work related trauma causes a dormant
degenerative condition to become disabling and to result in a functional
impairment, the trauma is the proximate cause of the harmful change. Hence, the
harmful change comes within the definition of injury. McNutt Construction v. Scott, 40 S.W.3d 854 (Ky., 2001).
I
have reviewed every piece of medical evidence in the record, I find the medical
opinions of Dr. Bruce Guberman and Dr. Robert Granacher to be the most
persuasive and compelling medical evidence in the record. It is their opinions
upon which I have chosen to rely in reaching my opinion as to the Plaintiff’s
claim. In my judgment, the other medical evidence presented in the record is
either inconsistent or not characterized by impartiality or otherwise not as
compelling as the medical evidence upon which I have chosen to rely.
Dr. Guberman assigns to the Plaintiff a 7% WPI as the result of the work
related accident of January 3, 2012. He assigns her permanent restrictions that
are inconsistent with the job duties of an EMT and has opined that she does not
retain the physical capacity to return to the type of work performed at the
time of the injury.
Dr.
Granacher assigns to the Plaintiff a 0% WPI related to the 1/3/2012 injury
using the Guides to Evaluation of
Permanent Impairment, 2nd and 5th Editions. He
affirmed that the Plaintiff does have a 5% psychiatric impairment pre-existing
to the 01/03/2012 injury, which was active and ratable, but caused by other
non-vocational stressors.
The ALJ concluded Branham was not permanently totally
disabled. The ALJ entered, in relevant
part, the following findings of fact and conclusions of law:
. . .
2. The work related incident of
December 29, 2011 did not result in any injury as defined by the Act. KRS
342.00011(1).
3. There is no argument made as to the
accuracy of impairment ratings assigned under the AMA Guides to the Evaluation of Permanent Impairment. KRS
342.730(1)(b).
4. The work related incident of January
3, 2012 did result in an injury as defined by the Act. KRS 342.0011(1).
. . .
6. As the direct and proximate result
of the work related accident of January 3, 2012, the Plaintiff sustained a
whole person impairment of 7% as assigned by Dr. Bruce Guberman according to
the AMA Guides to the Evaluation of Permanent Impairment, whose opinion I find
to be the most credible, compelling and persuasive in the record and upon which
I rely in making this determination. She did not have a pre-existing active and
ratable impairment to her lower back. KRS 342.730(1)(b).
7. The Plaintiff does not retain the
physical capacity to return to the type of work performed at the time of the
injury. KRS 342.730(1)(c)1.
8. The Plaintiff also suffers from a 5%
whole person impairment from a psychological condition. However, that condition
was active and ratable prior to the work related accident of January 3, 2012
and was not the direct result of the physical injury sustained therein.
Therefore, it is not compensable. KRS 342.0011(1). In making this
determination, I rely on the opinion of Dr. Robert Granacher, whose opinion I
find to be the most credible, compelling and persuasive in the record and upon
which I rely in making this determination.
9. The Plaintiff was entitled to, and
did receive, temporary total disability payments (TTD) at the rate of $517.57
per week from January 4, 2012 through January 8, 2012 and February 14, 2012
[sic] August 22, 2012 for a total of $14,491.84.
10. The Plaintiff is entitled to an
award of permanent partial disability (PPD) benefits consistent with a 7% WPI
rating and a statutory multiplier of 3 based upon an average weekly wage of
$776.31 not to exceed 425 weeks to be calculated as follows: $512.36 (max) x
.07% x 0.85 (grid factor) x 3 (multiplier) = $92.38 per week, not to exceed 425
weeks. KRS 342.730.
TTD benefits were awarded at the rate of $517.57 per week
from January 4, 2012, through January 8, 2012, and again from February 14,
2012, through August 22, 2012, for a total of $14,491.84. PPD benefits were awarded in the amount of
$92.38 per week continuing thereafter for 425 weeks. Although the ALJ found Branham had an active
and ratable psychological condition meriting a 5% impairment rating prior to
the January 3, 2012, injury, he did not order her psychological injury claim dismissed. As previously noted, the ALJ awarded medical
benefits and vocational rehabilitation.
Quest Care filed a petition for reconsideration asserting
the ALJ’s award of medical benefits needed to be clarified since the ALJ
determined Branham had not sustained a compensable psychological injury. It also requested the ALJ to order Branham’s
psychological injury claim dismissed.
Quest Care asserted the ALJ did not review all of the records,
specifically the records of St. Joseph Hospital – Martin and requested
additional findings regarding its contention Branham had a pre-existing
condition. Quest Care contended the ALJ
utilized the wrong standard in determining whether Branham had a pre-existing
impairment or disability. It also took
issue with the ALJ’s reliance upon Dr. Guberman’s opinions. Finally, Quest Care noted the ALJ did not
conduct an analysis pursuant to Fawbush v. Gwinn, supra, which
was necessary since the parties stipulated Branham had returned to work at a
wage equal to her pre-injury AWW.
In the July 19, 2013, Order, the ALJ denied Quest Care’s
petition for reconsideration.
Quest Care filed a notice of appeal. Noting the pending medical fee disputes, this
Board concluded Quest Care had appealed from a decision which was not final and
appealable and dismissed the appeal.
On remand, Quest Care filed supplemental medical fee
disputes and joined additional parties.
In a joint motion for submission signed by counsel for both parties, the
parties requested the claim be taken under submission by the ALJ for a decision
on the pending medical fee disputes. In
an order dated April 16, 2014, the ALJ granted the parties thirty days to
submit briefs. Upon the filing of the
briefs the claim would be taken under submission. No further deposition or hearing testimony
was taken.
In the March 4, 2015, Order on Remand, the ALJ provided, in
relevant part, the following analysis:
It is the employer's
responsibility to pay for the cure and relief from the effects of an injury or occupational disease, all
medical, surgical, hospital treatment, including nursing, medical and surgical supplies and appliances as may be reasonably
be required at the time of the injury and thereafter during disability. K.R.S. 342.020.
As to
the ER treatment of 6/10/2012, I agree with the medical opinion of Dr. F.
Albert Olash, Jr. that Ms. Branham’s presentation to the Pikeville Medical
Center ER for evaluation and treatment for pain was medically unreasonable and
unnecessary. As Dr. Olash pointed out, Ms. Branham’s decision was not a good
one. Whether she was trying to get refills for her medications, seek a second
opinion or get treatment for pain, she was asking medical professionals who
deal with emergencies to handle a medical problem for which they had no history
other than the patient’s complaints. She should have gone back to her primary
physician, who was at that time, Dr. Short.
As to
the requests for physical therapy, I rely on the medical opinion of Dr. Peter
T. Kirsch, which I find to be persuasive. I do not agree with Dr. Kirsch’s
overall diagnosis, but I do believe that the time for effective results from PT
is gone. In making this finding, I also rely on the history related by the
Plaintiff that she could not tolerate physical therapy. As that is the case, I
cannot fathom that further physical therapy would be either medically
reasonable or necessary.
As to
the requests for a
neural scan, and lower extremity needle EMG and VNG, I note that these diagnostic tests have all been administered since
the date of Plaintiff’s injury and have been used and reviewed by several
physicians. I see no reason why Kentucky Pain Physicians cannot do the same and
I find no basis expressed in any pre-authorization request that explains why a
more recent test would be clinically necessary. So, I find the requests for a
neural scan, and lower extremity needle EMG and VNG to be medically unnecessary and unreasonable.
The
remaining medical (fee) disputes can be distilled into the issues of the
efficacy of ongoing treatment by Kentucky Pain Physicians and the pharmacology
prescribed by their medical professionals/employees. I must determine whether
the treatment herein is productive and the type of treatment
generally accepted by the medical profession as reasonable and compensable.
This finding must be made by the Administrative Law Judge based upon the
facts and circumstances surrounding each case. Square D Company v. Tipton, 862 S.W.2d 308 (Ky.1993).
In this claim, the Defendant/Employer
contests monthly office visits requested by Kentucky Pain Physicians, arguing
that the visits and the medication prescribed are not compensable. Ms.
Melton, APRN/Dr. Vaio opined that their treatment is reasonable and
necessary for the Plaintiff's low back pain and that this treatment includes
medication that is a controlled medication in Kentucky and therefore requires
close monitoring
for efficacy and aide-effects and for this reason the Plaintiff needs frequent
observation and monitoring for side-effects and complications.
The other medical fee disputes filed in
this case were based upon Dr. Bart Olash's Physician Review report dated 3-20-13, of which I do
not have a copy. By report, Dr. Olash concluded in part as follows, "All
data indicates that the work injury
resulted in a minor muscular strain/sprain/contusion. There is no documentation
that it resulted in any more
significant pathology... Hence, there is no need for further evaluation or treatment by providers at Kentucky
Physicians..."
I rely on the medical opinion of Dr. Bruce
Guberman, which I find to be the most complete, compelling and persuasive
medical evidence in the record as it pertains to the causation of Plaintiff's injuries and Dr. Guberman’s diagnosis of acute and chronic
lumbosacral strain, post-traumatic which resulted in a 7% permanent impairment
rating. I am further persuaded by Dr.
Guberman’s opinion that the plaintiff requires maintenance medication for her
work related injuries. Therefore, Defendant/Employer and its insurance carrier must be ordered to pay
for the monthly office visits to Kentucky Pain Physicians as well as a
reasonable and necessary medication regimen prescribed by its physicians
as they are compensable treatment for the relief of the Plaintiff s injuries
that arose out of the work injury of 01/03/12.
. . .
Pain
management is an area of medical practice recognized by the Kentucky Medical
Association. The medical professionals who work for Kentucky Pain Physicians
are licensed and regulated by the Kentucky Medical Association The Plaintiff
has been treating with Kentucky Pain Physicians as early as
6/20/12 and continues to treat with them. The treatment being rendered by Dr. Windsor now is
consistent with the treatment that has been rendered continuously.
Plaintiff has provided sufficient evidence
in support of her claim, per the opinions of Dr. (s) Short, Reddy, Vaio,
and Ms. Melton APRN, as well as Dr. Guberman to provide that the Plaintiff does
require future medical treatment for the relief of her injuries. It is
significant that Dr. Guberman stated the following, "the
recommended injections may alleviate symptoms, but they will not affect her
overall prognosis, and
that she will not improve significantly with any planned treatment, but that
the Plaintiff should have the injections and maintenance medication
treatment."
Therefore,
Defendant/Employer and its insurance carrier shall be ordered to pay for the monthly office visits provided
by Kentucky Pain Physicians as well as the medication
regimen prescribed.
The ALJ entered, in relevant part, the following findings of fact and
conclusions of law:
.
. .
4. As to
the ER treatment of 6/10/2012, I agree with the medical opinion of Dr. F.
Albert Olash, Jr. that Ms. Branham’s presentation to the Pikeville Medical
Center ER for evaluation and treatment for pain was medically unreasonable and
unnecessary. Ms. Branham, as the claimant, failed to prove
that the disputed treatment is compensable.
R.J. Corman R.R. Const. v. Haddix, 864 S.W.2d 915 (Ky. 1993); See
KRS 342.735(3); Addington Resources, Inc. v. Perkins, 947 S.W.2d 421
(Ky. 1997); KRS 342.020.
5. As to
the requests for physical therapy, I rely on the medical opinion of Dr. Peter
T. Kirsch, and the history by Plaintiff that she could not tolerate physical
therapy, which I find to be persuasive. I therefore find that further physical
therapy for this claimant is medically unreasonable and unnecessary. Ms.
Branham, as the claimant, failed to prove that the disputed treatment is
compensable. R.J. Corman R.R. Const.
v. Haddix, 864 S.W.2d 915 (Ky. 1993); See KRS 342.735(3); Addington
Resources, Inc. v. Perkins, 947 S.W.2d 421 (Ky. 1997); KRS 342.020.
6. As to
the requests for a neural scan, and lower extremity needle EMG
and VNG, I note that these diagnostic tests
have all been administered since the date of Plaintiff’s injury and have been
used and reviewed by several physicians. I see no reason why Kentucky Pain
Physicians cannot do the same and I find no basis expressed in any
pre-authorization request that explains why a more recent test would be
clinically necessary. So, I find the requests for a neural scan, and
lower extremity needle EMG and VNG to be
medically unnecessary and unreasonable. Ms. Branham, as the claimant,
failed to prove that the disputed treatment is compensable. R.J. Corman R.R. Const. v. Haddix, 864
S.W.2d 915 (Ky. 1993); See KRS 342.735(3); Addington Resources, Inc. v.
Perkins, 947 S.W.2d 421 (Ky. 1997); KRS 342.020.
7.
I am persuaded by the medical opinion of Dr. Guberman that the Plaintiff will
require “maintenance treatment in order to control her symptoms and maintain
her current level of functioning…” which would include …”medication, physician
visits and possible injections as recommended by her treating physicians” as
well as the medical statements from providers at Kentucky Pain Physicians that
the treatment they are providing to the Plaintiff is medically reasonable and
necessary for the cure and relief from the effects of her injury. KRS 342.020.
8. I am also
persuaded by the testimony of the Plaintiff, which I find to be credible. A
claimant’s own testimony is competent and of some probative value. Caudill v. Maloney’s Discount Stores,
560 S.W.2d 15 (Ky., 1977). A worker's testimony is competent evidence of his
physical condition and of his ability to perform various activities both before
and after being injured. Hush v. Abrams,
584 S.W.2d 48 (Ky. 1979). I am persuaded by the Plaintiff’s testimony that she
suffers from significant and severe pain and that she requires relief from that
pain in order to function. KRS 342.020.
9. Thus, I find that the claimant has met her
burden of proof to show that the prescribing of Lortab
(Hydrocodone-Acetaminophen) 10, Zanaflex, Therymine, Gabbadone, Neurontin,
Prozac, Medrox (ointment & patch), Diazepam, Mobic, Celebrex, Lyrica,
Valium and LESI’s is medically necessary and reasonable, and therefore
compensable. R.J. Corman R.R. Const.
v. Haddix, 864 S.W.2d 915 (Ky. 1993); See KRS 342.735(3); Addington
Resources, Inc. v. Perkins, 947 S.W.2d 421 (Ky. 1997); KRS 342.020.
With respect to the issue on appeal,
the ALJ ordered as follows:
As to the continuing and
regular monthly treatment by Kentucky Pain Physicians, their ordinary and
regular screening procedures such as urine screens and blood pressure tests,
and their prescriptions for Lortab (Hydrocodone-Acetaminophen) 10, Zanaflex,
Therymine, Gabbadone, Neurontin, Prozac, Medrox (ointment & patch), Diazepam,
Mobic, Celebrex, Lyrica, Valium and LESI’s as provided and dispensed by DOCTORS MEDICAL, INJURED WORKERS PHARMACY,
RX DEVELOPMENT ASSOCIATION, and MILLENIUM LABORATORIES, INC., the
Defendant/Employers Medical (Fee) Disputes are hereby DENIED and DISMISSED.
All past due and owing charges shall be paid by the Defendant/Employer and
shall bear an interest rate of 12%.
Quest Care filed a petition for
reconsideration alleging the ALJ had incorrectly stated in his decision that he
did not have a copy of Dr. Bart Olash’s report in the record. It cited Dr. Olash’s opinions regarding the
various treatment modalities and medications.
Quest Care argued the ALJ erred in relying upon Dr. Guberman and the
brief statements of the treating physicians as neither constituted substantial
evidence. It contended the finding the
entire medication regimen is reasonable and necessary is unsupported by medical
evidence because neither Dr. Guberman nor the treating physicians specifically
addressed each of the contested medications.
It noted Dr. Guberman merely indicated Branham would require maintenance
treatment which did not address the contested medications. Further, it noted Drs. Frank Parker and Olash
were the only ones to specifically address each medication. Quest Care also cited Branham’s testimony
which established many of the medications offered no benefit. Therefore, it argued that based on the
medical evidence from Drs. Parker and Olash, the medication should be
discontinued.
In the April 27, 2015, Order ruling on the petition for reconsideration,
the ALJ noted he had erroneously stated Dr. Olash’s report of March 20, 2013,
was not in the record. The ALJ amended
his decision deleting any reference to the fact he did not have a copy of Dr.
Olash’s report. However, the ALJ
overruled Quest Care’s petition for reconsideration reasoning as follows:
Regarding the
pharmacology prescribed by Kentucky Pain Physicians for the Plaintiff, I chose
to rely on the medical opinion of Dr. Bruce Guberman, M.D. that the Plaintiff
requires ongoing medication maintenance treatment due to her work-related
injuries. He is not a pain management physician, and one would not expect him
to be specific as to that regime.
Drs. Sandeep Vaio,
M.D., Dr. H.K Reddy, M.D. and Janessa Melton, APRN of Kentucky Pain Clinic, who
are managing the Plaintiff’s pain medication on a month to month basis. As
defense counsel has stated, those recommendations have changed over time, but
one would expect them to. They have certified that the medications prescribed
by them are reasonable and necessary for the cure and relief of the Plaintiff’s
symptoms. They have not testified as to each medication by name and function,
while Dr. Olash has.
I have the medical
reports of three medically licensed medical professionals regularly involved in
the practice of pain management. I choose to rely on the medical professionals
who see, evaluate and treat these people every day.
As to the prescribing of medications the record as a whole must meet the standard required by Square
D Company v. Tipton, 862 S.W.2d 308 (Ky.
1993) which requires that the Defendant/Employer must prove that the
Plaintiffs medical treatment is unproductive or outside the type of treatment generally accepted in the medical
community. See Crawford and
Company v. Wright, 284 S.W.3d
136 (Ky. 2009) and Mitee Enterprises
v. Yates, 865 S.W.2d 654 (Ky. 1993). Dr. Olash’s_ opinion does not meet
this standard and given Ms. Branham’s history, I do not find the prescribing
for her of Diazepam, Celebrex, Hydrocodone/APAP, Lyrica, Endocet, Medrox
External Ointment, Medrox Patch ER,, Theramine Oil Cap and Gabadone to be medically unreasonable or unnecessary.
Defendant Employer’s allegation of error
patently appearing on the face of the Order on Remand is a disagreement with my
interpretation of the medical evidence in the record, which is not within the
scope of my review under the provisions of KRS 342.281. Francis v. Glenmore Distilleries, 718 S.W.2d 953 (Ky. App. 1986).
For all of the foregoing reasons, I fail
to find error appearing patently on the face of the Order on Remand, except as
set out herein above.
Quest Care’s first argument is the
ALJ erroneously calculated the PPD award.
It contends that based on the $512.36 figure used by the ALJ in
calculating the PPD award, the weekly award should be $91.45 as opposed to
$92.38. Quest Care notes the award of
$92.38 appears to be based upon a base figure of $517.57 which is 2/3 of
Branham’s AWW of $776.36.
Next, Quest Care contends the ALJ applied the wrong standard in analyzing
whether Branham had a pre-existing impairment or disability. It contends the ALJ relied solely upon the
fact Branham was capable of carrying a 300 to 350 pound woman on a stretcher which
weighed approximately 200 pounds when she fell as determinative of whether she
had a prior disability. Quest Care
asserts the ALJ did not address whether Branham had an active ratable condition
with respect to her low back prior to January 3, 2012. It asserts the ALJ provides no other findings
except for stating his belief Branham did not have an active ratable low back condition
prior to January 3, 2012.
Further, Quest Care contends the ALJ
provided no discussion of Branham’s prior treatment other than to state she was
very forgetful of her previous treatment.
Quest Care insists even though the ALJ cited to Finley v. DBM
Technologies, 217 S.W.3d 261 (Ky. App. 2007), his findings do not conform
to the standard enunciated therein. Quest
Care cites to various medical records which indicate Branham began treatment
for low back pain complaints in March 2011 which ultimately necessitated an evaluation
by Dr. Densler approximately six months prior to the subject work injury. It observes on June 28, 2012, Dr. Densler
noted Branham had been having pain for a year prior to his evaluation.
Quest Care notes that during her
March 6, 2013, deposition, Branham testified she did not treat with Michael
Williams, a physician’s assistant, for anything other than colds. However, the records from the St. Joseph Hospital
– Martin where Branham was treated by Michael Williams demonstrate she had low
back pain and right hip pain in March, April, and June 2011. Quest Care relies upon the results of the June
1, 2011, MRI performed at Highlands Regional Medical Center which reveals the
same findings as the MRI performed after the work injury.[1] Quest Care notes Drs. Lester and Muffly
opined Branham had a 5% pre-existing active impairment and therefore at least
5% of her impairment should be considered pre-existing active as it was
symptomatic and impairment ratable immediately before the injury. It contends the ALJ’s decision on this issue
should be reversed and the claim remanded for additional findings as to whether
Branham’s condition was symptomatic and impairment ratable prior to the work
injury.
Concerning
Quest Care’s third argument that Dr. Guberman’s opinions regarding Branham’s
impairment rating and restrictions do not constitute substantial evidence, it contends
Dr. Guberman did not have the opportunity to review the prior medical records
from St. Joseph Hospital – Martin, Our Lady of the Way Hospital, Dr. Densler, and
the results of the Highlands Regional Medical Center MRI dated June 1,
2011. Citing Cepero v. Fabricated
Metals Corp., 132 S.W.3d 839 (Ky. 2004), it argues Dr. Guberman’s opinion
relative to causation is corrupt since he did not have an accurate history of
Branham’s prior low back condition. Even
though Dr. Guberman issued a supplemental report of March 11, 2013, noting he reviewed
additional medical records, Quest Care contends there is no indication the
records reviewed were those generated before the work injury of June 3,
2012. Quest Care maintains Dr. Guberman
noted he agreed with Dr. Lester’s impairment rating. However, it points out Dr. Guberman did not
have the opportunity to review Dr. Lester’s March 19, 2013, supplemental report
in which Dr. Lester changed his opinions after reviewing the prior medical
records, opining the 5% impairment rating he previously assessed relates to
pre-existing problems.
Quest Care contends the records of Dr. Densler and the MRI of June 1,
2011, establish Branham was having the very same low back problems six months
prior to the alleged work injury. It maintains
Drs. Muffly and Lester were the only doctors who reviewed all of the relevant
medical records. Therefore, the ALJ’s reliance
upon Dr. Guberman’s opinions was not appropriate, and Branham’s claim should
either be dismissed or remanded for a finding Branham had a 5% impairment
rating for a pre-existing active condition.
Alternatively, it requests the claim be remanded to the ALJ for
additional findings as to how Dr. Guberman’s report serves as substantial
evidence.
Quest
Care’s fourth argument pertains to the ALJ’s failure to perform an analysis
pursuant to Fawbush v. Gwinn, supra. Quest Care points out the
parties stipulated Branham returned to employment with the same employer at an
equal wage for a little over a month after the injury. Further, Branham testified her hourly rate
actually increased from $12.00 an hour to $13.00 an hour after the injury. Since there was no analysis pursuant to Fawbush
v. Gwinn, supra, Quest Care requests the claim be remanded for such
an analysis and a determination the two multiplier set forth in KRS
342.730(1)(c)2 is applicable.
Quest Care’s final argument is that the ALJ’s determination Branham’s
medical regimen is reasonable and necessary is not supported by substantial
evidence. It notes neither the opinions
of Dr. Guberman nor those of the treating physicians, Drs. Rachel Short, H.K. Reddy,
Sandeep Vaio, and Janessa Melton (“Melton”) APRN, the nurse practitioner, can
be deemed substantial evidence supporting a determination the entire medical
regimen of Diazepam, Celebrex, Hydrocodone/APAP, Lyrica, Zanaflex, Endocet,
Medrox External Ointment, Medrox Patch ER, Theramine Oral Cap and Gabadone is
medically necessary. Quest Care
maintains these physicians did not specifically address each of the contested
medications or provide sufficient reasoning for their need. Quest Care notes Dr. Guberman merely
indicated Branham would require maintenance medication treatment and injection
which does not address the contested medications. Similarly, the statements from Dr. Short
dated October 23, 2013, did not address the medication regimen or provide any
rationale for taking the medications.
Likewise, the statements of Melton, the nurse practitioner, failed to address
the current medical regimen with specificity.
Conversely, Quest Care asserts only its
physicians, Drs. Parker and Olash, addressed each of these medications and
provided a rationale as to the need for each.
In addition, it notes Branham’s testimony establishes many of the medications
are not helpful. Quest Care requests
remand for a finding that the medication regimen is not reasonable or necessary
based on the opinions of Drs. Parker and Olash.
Because the ALJ’s calculation of the award is erroneous, we vacate the award
of PPD benefits and remand for additional findings. The parties stipulated Branham’s AWW was
$776.31, 66 2/3 of which is $517.54.[2] The ALJ awarded TTD benefits at the rate of $517.57. However, in calculating the PPD rate the ALJ
utilized a figure of “$512.36 (max).”
Thus, the award of TTD benefits cannot be reconciled with the ALJ’s
calculation of PPD benefits.
KRS 342.730(1)(b) directs as follows:
For permanent partial disability, sixty-six and two-thirds
percent (66-2/3%) of the employee's average weekly wage but not more than
seventy-five percent (75%) of the state average weekly wage as determined by
KRS 342.740, multiplied by the permanent impairment rating caused by the injury
or occupational disease as determined by the “Guides to the Evaluation of
Permanent Impairment,” times the factor set forth in the table that follows:
|
AMA Impairment |
Factor |
|
|
0 to 5% |
0.65 |
|
|
6 to 10% |
0.85 |
|
|
11 to 15% |
1.00 |
|
|
16 to 20% |
1.00 |
|
|
21 to 25% |
1.15 |
|
|
26 to 30% |
1.35 |
|
|
31 to 35% |
1.50 |
|
|
36% and above |
1.70 |
Pursuant to the above statute, since
66 2/3 of Branham’s AWW did not exceed 75% of the state AWW which is $552.13,
the base figure to be utilized should have been $517.54. Multiplying the 5.85 factor by the 7%
impairment yields a net 5.95% impairment rating. $517.54 multiplied by 5.95%
yields weekly benefits of $30.84. This figure
is obtained prior to a determination of whether any multipliers are
applicable.
Since Quest Care’s second and third
arguments are interrelated, we will address them together. However, we will first address Quest Care’s
assertion the opinions expressed in Dr. Guberman’s report and letter cannot
constitute substantial evidence.
Branham, as the claimant in a
workers’ compensation proceeding, had the burden of proving each of the
essential elements of her cause of action, including causation. See KRS 342.0011(1); Snawder v. Stice,
576 S.W.2d 276 (
In rendering a decision, KRS 342.285
grants an ALJ as fact-finder the sole discretion to determine the quality,
character, and substance of evidence. Square D Co. v.
Tipton, 862 S.W.2d 308 (
The
function of the Board in reviewing an ALJ’s decision is limited to a
determination of whether the findings made are so unreasonable under the
evidence that they must be reversed as a matter of law. Ira A. Watson Department Store v.
In the case sub judice, Dr. Guberman’s opinions constitute substantial
evidence. Further, after an examination
of the record, we conclude Cepero, supra, is
inapplicable in the case sub judice. Cepero, supra, was an unusual case involving not
only a complete failure to disclose, but affirmative efforts by the employee to
cover up a significant injury to the left knee only two and a half years prior
to the alleged work-related injury to the same knee. The
prior, non-work-related injury had left Cepero confined to a wheelchair for more than a month. The
physician upon whom the ALJ relied in awarding benefits was not informed of
this prior history by the employee and had no other apparent
means of becoming so informed. Every physician who was adequately
informed of this prior history opined Cepero’s left knee impairment was not work-related but, instead, was
attributable to the non-work-related injury two and a half
years previous. We find nothing akin to Cepero in
the case sub judice.
Dr. Guberman’s Form 107 completed on
October 3, 2012, reflects he reviewed a number of medical records. We acknowledge Dr. Guberman did not
specifically reference the medical records from St. Joseph Hospital – Martin;
Dr. Densler’s record generated as a result of his examination on June 28, 2010;
and the MRI performed on June 1, 2011, at Highlands Regional Medical
Center. In assessing the 7% impairment
rating, Dr. Guberman noted Branham fell within Lumbar DRE Category II. He placed Branham in the upper end of the
category since she had significant persistent symptoms which interfered with
her activities of daily living. Notably,
Dr. Guberman did not place Branham in the very upper end of the category since
she had a prior history of lower back injuries and degenerative changes as
noted on imaging studies of her lumbar spine.
This statement clearly evidences an awareness of Branham’s prior low
back problems. He went on to state there
was no evidence Branham would have had an impairment rating in regard to the
lumbar spine if not for the injury of January 3, 2012. Dr. Guberman specifically stated Branham did
not have an active impairment prior to the injury. Attached to the Form 107 were the calculations
performed pursuant to the 5th Edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (“AMA Guides”).
In a March 11, 2013, letter, Dr. Guberman
stated he reviewed the “enclosed medical reports from Dr. Densler, Highlands
Regional Medical Center, Pike Medical Center, Dr. William Lester and Dr. David
Muffly.” He also indicated he had
reviewed his own independent medical evaluation. He stated, he was aware Branham experienced
prior low back conditions and injuries and these were also described in his
report. Dr. Guberman stated he was also
aware of degenerative changes noted on imaging studies which were mentioned in
his report. He opined the work injury of
January 3, 2012, is the most significant injury based on Branham’s history and his
review of records. Dr. Guberman stated
as follows:
As discussed in my report, I apportioned the entire
7 (seven) percent impairment of the whole person for her lumbar spine to the
January 3, 2012 injury and 0 (zero) percent impairment of the whole person to
the pain she experienced while functioning as a pallbearer in December 2011.
Dr. Guberman also expressed his
disagreement with Dr. Muffly’s statement in his February 22, 2013, report that the
January 3, 2012, work injury resulted in a temporary lumbar strain which did
not result in any harmful change to the human organism. Rather, he believed the detailed history
reported at the time of his examination and his review of the medical records
indicates Branham’s injury was not temporary.
Branham’s low back pain has been worsening since the work injury. Dr. Guberman stated Branham has persistent
range of motion abnormalities of the lumbar spine as indicated in his
report. Therefore, it was his opinion
the injury occurring on January 3, 2012, resulted in permanent impairment as
well as permanent symptoms and range of motion abnormalities. Dr. Guberman stated he agreed with Dr.
Lester’s February 14, 2013, note in which he indicated Branham fell within DRE
Lumbar Spine Category II from Table 15-3 of the AMA Guides. He stated that based upon his review of the
documents described above, he continued to remain in agreement with the
conclusions, findings, recommendations, and impairment rating expressed in his
report of October 3, 2012.
Dr.
Guberman’s report and subsequent letter sufficiently establishes he reviewed the
medical records evidencing Branham’s pre-existing low back problems. Furthermore, assuming arguendo, Dr. Guberman did not have all the prior relevant medical
records as alleged by Quest Care, that fact merely went to the weight to be
given his opinions. The ALJ is the sole
judge of the credibility and weight to be afforded the evidence, and we have no
authority to invade his discretion. Here,
we conclude the opinions expressed in Dr. Guberman’s October 3, 2012, Form 107
and his March 11, 2013, letter qualify as substantial evidence sufficient to
support the ALJ’s finding regarding work-related causation and the applicable
impairment rating. Further, the contrary
opinions pertaining to causation expressed by Drs. Lester and Muffly are nothing
more than conflicting evidence compelling no particular result. Copar, Inc. v. Rogers, 127 S.W. 3d 554
(Ky. 2003).
Finally, we believe Dr. Guberman’s
March 11, 2013, letter sufficiently rebuts Quest Care’s contention Dr. Guberman
did not have all the medical records it contends establish Branham had a
pre-existing active condition. As
previously noted, the fact Dr. Guberman may not have had a complete medical history
merely went to the weight and credibility to be afforded his testimony which is
a matter to be decided exclusively within the ALJ’s province as
fact-finder. Paramount Foods, Inc. v.
Burkhardt, 695 S.W.2d 418 (Ky. 1985).
Hence, we find no error in the ALJ’s reliance upon Dr. Guberman’s opinions
that Branham sustained a work-related low back injury on January 3, 2012, which
merited a 7% impairment rating.
We reject Quest Care’s second argument the ALJ did not apply the
analysis required by Finley v. DBM Technologies, supra. In Finley v. DBM Technologies, supra,
the Court of Appeals stated as follows:
In its opinion, the Board correctly and succinctly set forth the
law upon compensability of a pre-existing dormant condition:
What then is necessary to sustain a determination that a
pre-existing condition is dormant or active, or that the arousal of an
underlying pre-existing disease or condition is temporary or permanent? To be
characterized as active, an underlying pre-existing condition must be
symptomatic and impairment ratable pursuant to the AMA Guidelines
immediately prior to the occurrence of the work-related injury. Moreover, the
burden of proving the existence of a pre-existing condition falls upon the
employer. Wolf Creek Collieries v. Crum,
673 S.W.2d 735, 736 (Ky. App. 1984).
Id.
at 265.
The ALJ noted Branham was very
forgetful regarding her prior history.
However, that fact did not preclude the ALJ from finding the record did
not support a finding she suffered from a prior active ratable impairment at
the time of the work injury. The ALJ concluded
the fact Branham “was carrying one end of a 300-350 [pound] woman on a
stretcher that itself weighed approximately 200 [pounds] when the accident
occurred” is determinative of whether she had a prior disability. This is not an unreasonable conclusion.
The ALJ also noted Branham’s testimony is competent and is somewhat
probative. He also found Quest Care had
neither presented any non-medical evidence concerning the actual occurrence nor
attempted to impeach Branham’s veracity.
Consequently, he was constrained to accept Branham’s version of the
facts as accurate. Although the ALJ did
not go into great detail as to the portions of Branham’s testimony to which he
was referring, we conclude he was referring to her testimony that she had no
pre-existing low back problems which prevented her from performing her job with
Quest Care. Consistent with that
finding, we note there are no medical records indicating that after Branham was
seen by Dr. Densler in June 2011, she continued to have low back problems. In fact, Branham explained that sometime
after June 2011 she successfully sought employment at Quest Care as an
EMT. Thus, we believe the ALJ’s finding
that Branham did not have a pre-existing active low back condition was not unreasonable.
The ALJ stated he had reviewed all of
the medical evidence and concluded the opinions of Drs. Guberman and Granacher were
the most persuasive and compelling medical evidence in the record; consequently,
he relied upon their opinions in reaching his decision relative to Branham’s physical
and psychological injury respectively.
The ALJ concluded the other medical evidence presented was either
inconsistent, not characterized by impartiality, or otherwise not as compelling
as the medical evidence he had chosen to rely upon. These statements firmly establish the ALJ
accepted in total the opinions of Drs. Guberman and Granacher in resolving
Branham’s injury claims.
Although Quest Care asserts by not referencing
the St. Joseph Hospital - Martin records in his opinion, the ALJ did not
consider this evidence, we refuse to contradict the ALJ’s statement that he
reviewed every piece of medical evidence in the record.
More importantly, the ALJ’s reliance
upon Dr. Guberman’s opinions conclusively establishes Branham did not have a
pre-existing active impairment prior to January 3, 2012. Even though Branham may have had a pre-existing
symptomatic condition, the ALJ’s reliance upon Dr. Guberman’s opinion that “the
entire 7% impairment rating” is attributable to the January 3, 2012, work
injury defeats Quest Care’s assertion Branham had an impairment ratable
condition prior to the January 3, 2012, injury.
Stated another way, the complete reliance upon the opinions of Dr.
Guberman obviated the need for any further analysis pursuant to Finley v.
DBM Technologies, supra, since his opinion establishes Branham did
not have an impairment ratable condition prior to January 3, 2012. Therefore, the ALJ’s determination Branham
did not have a pre-existing active condition, and she has a 7% impairment
rating as a result of the injury must be affirmed.
That said, we agree the award enhanced by the three multiplier must be
vacated as the ALJ failed to perform an analysis pursuant to Fawbush v.
Gwinn, supra.
Quest Care does not argue the ALJ erroneously determined the three
multiplier was not applicable. Rather,
it contends since the parties stipulated and Branham testified she returned to
work earning the same or greater wages after the injury, a finding the two
multiplier is also applicable was compelled.
Because the parties stipulated Branham returned to work earning equal
wages after the injury, an analysis pursuant to Fawbush v. Gwinn, supra,
was mandated. The ALJ and the parties
are bound by the stipulation and the ALJ’s failure to conduct such an analysis
was clear error.
In Fawbush v. Gwinn, supra,
the Kentucky Supreme Court directed that when both KRS 342.730(1)(c)1 and
(1)(c)2 are applicable, the ALJ must determine which provision is more
appropriate based on the facts. Thus, in
the case sub judice, the ALJ should
have found the two multiplier applicable and determined whether Branham was
unlikely to be able to continue earning a wage that equals or exceeds the wage
at the time of the injury for the indefinite future. On remand, the ALJ shall determine whether
Branham was unlikely to be able to continue earning a wage that equals or
exceeds her wages at the time of the injury for the indefinite future.
Finally, we agree the ALJ’s decision regarding the compensability of Branham’s
medication regimen must also be vacated.
Quest Care’s medical fee dispute filed January 7, 2013, specifically
contested the compensability of Branham’s medical regimen including Diazepam,
Celebrex, Hydrocodone, Lyrica, and Endocet with Tizanidine on an as needed
basis.[3] In contesting the medications, Quest Care relied
upon the report of Dr. Parker, who noted the use of Benzodiazepines and opiates
had offered very little relief and no return of function. Thus, they should be terminated as they have
the highest risk of side effects. Dr.
Parker also discussed the use of Tizanidine, Diazepam, Celebrex,
Hydrocodone/APAP, Lyrica, and Endocet, concluding all but “PRN Tizanidine” were
not reasonable and necessary treatment.
In a medical fee dispute filed March 26, 2013, Quest Care also contested
the medical regimen consisting of Medrox Patch ER, external ointment, Therymine
Oral Cap, and GABAdone.[4] Quest Care relied upon Dr. Olash who opined
none of the above were necessary or reasonable.
A review of the record reveals Drs.
Guberman, Short, Reddy, Vaio, and Melton, the nurse practitioner, did not
specifically address the need for the contested medications. Conversely, the reports of Drs. Parker and
Olash specifically set out the basis for their opinions concerning the
reasonableness and necessity for the medication in question.
We agree with Quest Care that the ALJ
did not provide the requisite analysis regarding reasonableness and necessity
of the medications in question. In
paragraph eight of his findings of fact in the March 4, 2015, decision, the ALJ
stated he was persuaded by Branham’s testimony she suffers from significant and
severe pain and requires relief from that pain.
Consequently, he found in paragraph nine of his findings of fact that Branham
met her burden of proof to show certain medications were medically reasonable
and necessary.
In his April 27, 2015, Order ruling
on the petition for reconsideration, the ALJ indicated he also relied upon the
medical opinions of Drs. Guberman, Vaio, Reddy, and Melton, the nurse
practitioner. In doing so, he indicated these
individuals had certified the medications prescribed were reasonable and
necessary for the cure and relief of Branham’s symptoms. However, the ALJ noted that neither the
physicians nor Melton testified as to each medication by name and function. The ALJ went on to note only Dr. Olash had
done this. The ALJ failed to note Dr.
Olash only offered an opinion relative to some of the medications. He did not note Dr. Parker had specifically
discussed the need for other medications.
In reviewing the record, we are unable to find any specific statement
from Drs. Vaio, Reddy, Guberman, or Melton relating to the medication regimen
and particularly the specific medications identified by Quest Care in its
medical dispute and discussed by Drs. Olash and Parker. Rather, the doctors and Melton provided
generic statements their treatment of Branham’s work injury was reasonable and
necessary. Consequently, the blanket
reference to the doctors does not identify the specific medical opinions by
these doctors upon which the ALJ relied.
The reference to these doctors without identifying a specific opinion as
to the reasonableness and necessity of specific medication does not provide the
Board and the parties with the basis for his decision regarding the disputed medications. We point
out Quest Care has not appealed the ALJ’s decision regarding the lumbar
LESIs. Thus, the ALJ’s decision
regarding the lumbar LESIs will not be altered.
The ALJ’s statement in the March 2015
decision that he relied upon Branham’s testimony in determining the Lortab,
(Hydrocodone – Acetaminophen) 10, Zanaflex, Therymine, Gabbadone, Neurontin,
Prozac, Medrox (ointment and patch), Diazepam, Mobic, Celebrex, Lyrica, and
Valium are reasonable and necessary cannot be reconciled with Branham’s March
26, 2013, hearing testimony. The
following is Branham’s hearing testimony relative to the effect and benefit of
the drugs prescribed:
Q: Okay – now, the medications that you were on at Kentucky Pain
Physicians – what did they prescribe for you?
A: They took me off the Percocet, put me on Lortab – Lortab,
Zanaflex to sleep – gosh there’s so many of them. Lortab, Zanaflex, Lyrica – I
can’t think of the other ones, So, I knew I couldn’t – I could never get the
Lyrica filled. I think I got it filled maybe once or twice because Comp
wouldn’t pay for it.
Q: Okay.
A: But I can’t remember the other medications.
Q: Who prescribed Tizanadine [sic] for you?
A: Dr. Short originally prescribed and then the Pain Clinic
ended up taking over and they started prescribing it for me.
Q: What does that do for you?
A: That’s – she put that – put me on that to try to help me
sleep because I don’t sleep because of the pain I can’t lay down, I can’t get
comfortable, or anything like that. And, she was hoping that if I would take
two at bedtime that I could at least, you know, relax and – and sleep but I
can’t.
Q: The Lortab ...
A: Uh-huh.
Q: What strength is that?
A: 10/500 – it’s Lorcet 10.
Q: Okay.
A: Lortab 10, the strongest.
Q: Now, what does that do for you?
A: Right now, nothing. It’s not doing anything. When they first
put me on it, it helped. Somewhat, it would relieve the pain but I think – it’s
like I told the doctor I think I’ve just – they’ve had me on it for so long I
think I just built up a tolerance to it because it’s – it’s not doing anything
for the pain.
Q: Okay – are you taking anything now that helps the pain?
A: Nothing helps the pain, now – nothing. No, they’ve put me on
Therymine (sic) is suppose [sic] to enhance the Lortab but it – it – I can’t
tell any difference.
Q: Does it provide any relief ...
A: No.
Q: For you?
A: No, no.
Q: What about the – Therymine?
A: That was the Therymine.
Q: That was the ...
A: Yeah.
Q: The Therymine?
A: Yeah.
Q: What about the Gabbadone?
A: The Gabbadone? No, I couldn’t tell I was – I take it – no.
Q: Okay – and, I think you [sic] also been prescribed Medrox
ointment and patch.
A: Yes.
Q: Does that provide ...
A: No.
Q: Relief?
A: No – none.
Q: Now, you were prescribed Diazepam.
A: Yes, Dr. Short.
Q: Why was that prescribed?
A: Anxiety. I was – the longer this went on the – the more
depressed I was getting and my anxiety was just extremely over – overwhelming,
especially when Comp stopped paying me my benefits – just all of a sudden just
up and stopped paying me, and ...
Q: When did that depression or anxiety start?
A: It started around August, September of last year.
Q: Have you had any depression or anxiety prior to January 3rd,
2012?
A: The only time I ever had any depression before was postpartum
depression with my first child, which he’s twenty years old. You know, that was
it and that didn’t last very long at all.
Q: Okay – how long did it last? What’s a period (sic) of not
very long?
A: They had put on Prozac and, honestly, I don’t even think it
was a full month ‘til it, you know ...
Q: So, you got over that?
A: Oh, I got over that, you know, real quick, you know, yeah.
Q: Okay – what about now?
A: I can’t – they’ve put me – they’ve – they’ve got me on Prozac
now and they had me on the lowest does of twenty milligrams, and they’ve
increased it to forty milligrams, but it’s – I can tell a very slight
difference but I’m just – it – it doesn’t do much.
Q: What problems does the depression or anxiety cause you?
A: I had really bad suicidal thoughts and – I’m sorry, I don’t
mean to cry but it’s just so hard to talk about, but I’ve had a lot of really
just horrible thoughts of, you know, just killing myself because I feel like
I’m such a burden to everybody.
Q: Is that because of the ...
A: Because of the injury.
Q: Pain?
A: Yeah.
Q: How often do you have the pain?
A: The pain never goes away.
Q: What kind of pain is it? Is it dull pain, sharp pain ...
A: Sharp.
Q: And, how often is it?
A: Constant, it never stops.
Q: Does the pain cause you any problems in concentration or . .
.
A: Yeah, it – you know, like I can sit on the couch and try and
help my son do his homework – my youngest son, and I can’t even – I can’t
concentrate at all. You know, I just – I have a hard time concentrating.
Q: Now, who prescribed Celebrex for you?
A: That was another one the Pain Clinic prescribed and then Comp
quit paying for it. They wouldn’t pay for it anymore.
Q: Did it help?
A: It helped a little but [sic]. It helped more than the
Neurontin they put me on.
Q: Okay.
A: The Celebrex helped.
Q: Okay – what – what relief did it give you?
A: I could function just a little bit more but not much, but it
just – it just eased it up a little but it wasn’t – it wasn’t a lot, you know,
a lot of relief but more than I’m getting now.
Q: Who prescribed the Lyrica for you?
A: the Pain – Kentucky Pain Physicians.
Q: Did it provide any relief for you?
A: No, they finally quit writing it because Comp wouldn’t pay
for it.
Q: How, are you taking Naproxen or Gabbapentin (sic) – either
one of those?
A: Gabbapentin – I don’t think I’m taking either – either one of
them. No, I don’t think so. They got that Gabbapentin mixed up with that
Gabbadone. I’m not ...
[text omitted]
JUDGE BOLTON: Before you start, Ms. Banks – Ms. Branham, I just
want to clear up one thing in my own mind before Ms. Banks gets into her
examination of you. Mr. Thacker took you through a long list of medications
that you – and asked you what they did for you and …
A: Uh-huh.
JUDGE BOLTON: To my recollection, there wasn’t any one single
one that you said really helped you. Is there any medication that you’re on
that you feel does give you some relief from your pain?
A: The – the Lortab will give me very little relief. I can
tolerate it – the pain, but it’s just like one of those things, it doesn’t last
very long.
JUDGE BOLTON: Uh-huh. So, you haven’t gotten any relief from any
other of the medications that you’ve been placed on except for the Lortab. Is
that what you’re saying?
A: Well, yeah pretty much – yeah. I just – I feel like I take a
pharmacy, you know, and I mean, it’s just ridiculous.
JUDGE BOLTON: So, are you currently still taking all these
medications ...
A: Unfortunately.
JUDGE BOLTON: That don’t give you any relief or ...
A: Unfortunately, yeah. They keep prescribing them, and I – you
know, so …
JUDGE BOLTON: Have you asked them to try anything different or
...
A: Yeah, actually I have.
JUDGE BOLTON: To try [sic] get any relief?
A: Yeah, I have asked them – I told them about the Lortab not
helping that much and the doctor told me unless I have surgery they can’t
prescribe anything stronger. And, let’s see, he took me off the – took me off
the Celebrex and put me on – I think it was Neurontin. I – and, Mobic is
another one. I mean, I can’t even tell I’m – I mean, I take them but I can’t
tell any – it’s doing anything – nothing at all.
[text omitted]
REDIRECT
Q: Okay – what medications are you current taking?
A: If I can remember I’ll tell you. The Lortab, the Therymine,
Gabbadone, Zanaflex, Mobic, Neurontin, Valium, Lorpressor, and Norvasc (sic)
and Prozac. I believe that’s it.
Q: Okay – and you were testifying that the Therymine and the
Gabbadone …
A: Uh-huh.
Q: Don’t provide any relief?
A: I – I can’t tell any difference, no.
Q: Okay – and, how about the Mobic?
A: I can’t ...
Q: Do you have any relief from the Mobic?
A: I can’t tell anything with it.
Q: Do you still take Endocet?
A: No, I haven’t taken that since June of last year.
Q: And, I believe the Zanaflex is the same as the Tizanidine.
A: Yeah, that’s what it is – yeah.
Q: Do you have any relief from the Zanaflex?
A: The only thing with that is it helps me relax to try and go
to sleep but I don’t – I never do actually sleep now because I just can’t get
comfortable.
We emphasize this is the last
testimony offered by Branham during these proceedings since the parties waived a
hearing for the medical fee disputes. The
above testimony from Branham conclusively establishes many of the medications
the ALJ found to be reasonable and necessary treatment either provided no
relief/benefit or were prescribed for her psychological condition which the ALJ
determined was a pre-existing and non-compensable condition. In light of Branham’s testimony and the fact
the doctors upon whom the ALJ relied did not offer a specific opinion as to the
reasonableness and necessity of any of the medications in question, the ALJ’s
decision finding these medications medically necessary and reasonable must be
vacated.
On remand, the ALJ must make an
individualized determination as to what medications, if any, constitute
reasonable and necessary treatment of Branham’s work injury and cite the
supportive evidence.
Accordingly, those portions of the ALJ’s July 19, 2013, Order relating
to the ALJ’s determination Branham has a 7% impairment rating as a result of
the work injury and has no pre-existing active condition is AFFIRMED. The award of PPD benefits is VACATED. On remand, the ALJ shall determine whether
Branham’s award of PPD benefits shall be enhanced pursuant to KRS
342.730(1)(c)1 or (1)(c)2. The ALJ shall
also enter an amended award of PPD benefits in conformity with the views
expressed herein.
Those portions of the March 4, 2015, Order on Remand and the April 27,
2015, Order ruling on the petition for reconsideration relating to the ALJ’s determination
numerous medications are reasonable and necessary treatment and therefore
compensable are VACATED. The matter is REMANDED to the ALJ for entry of a decision regarding the
compensability of the medications in question in conformity with the opinions
expressed herein.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON KATHERINE BANKS
P O BOX 1350
PRESTONSBURG KY 41653
COUNSEL
FOR RESPONDENT:
HON JOHN EARL HUNT
P O BOX 960
ALLEN KY 41601
RESPONDENTS:
DR RACHEL SHORT
HOPE FAMILY MEDICAL CENTER
P O BOX 187
SALYERSVILLE KY 41465
KENTUCKY PAIN PHYSICIANS
286 US HWY 23 NORTH
PRESTONSBURG KY 41653
PIKEVILLE MEDICAL CENTER
911 BYPASS ROAD
PIKEVILLE KY 41501
RX DEVELOPMENT ASSOCIATES
P O BOX 844624
DALLAS TX 75284
DOCTORS MEDICAL
P O BOX 844624
DALLAS TX 75284
INJURED WORKERS’ PHARMACY
P O BOX 338
METHUEN MA 01844
ADMINISTRATIVE
LAW JUDGE:
HON STEVEN BOLTON
657 CHAMBERLIN AVE
FRANKFORT KY 40601
[1] The MRI was performed after Branham
experienced low back pain while serving as a pall bearer on December 29, 2011.
[2] This figure is arrived at by dividing the
stipulated AWW by 3 and multiplying by 2.
[3] In that same medical fee dispute, Quest Care
also contested the continued physical therapy, the ER visit to Pikeville
Medical Center on June 10, 2012, and the treatment with Dr. Short and Kentucky
Pain Physicians.
[4] In this medical fee dispute, Quest Care also
identified the request for lumbar LESIs,
neural scan, lower extremity, needle EMG and VNG, as well as follow-ups with
Kentucky Pain Physicians.
