Commonwealth
of Kentucky
Workers’
Compensation Board
OPINION
ENTERED: August 29, 2014
CLAIM NO. 197931491
ELDORADO COAL CO. PETITIONER
VS. APPEAL FROM HON. STEVEN BOLTON,
ADMINISTRATIVE LAW JUDGE
JACK CHAPMAN;
MEDI HOME CARE;
MEDICAL SERVICES OF AMERICA;
and
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Eldorado Coal Co. (“Eldorado”) appeals from the
February 26, 2014 Order on Remand and the April 7, 2014 Order Overruling
Petition for Reconsideration rendered by Hon. Steven G. Bolton, Administrative
Law Judge (“ALJ”). On appeal, Eldorado
claims the ALJ’s decision, finding in favor of the claimant in a post-award
medical fee dispute, was not based on substantial evidence. For the reasons set forth herein, we
affirm.
Jack
Chapman (“Chapman”) in 1979 filed a claim alleging he had contracted coal
worker’s pneumoconiosis (“CWP”) while employed by Eldorado. He was awarded permanent total disability
benefits by Order dated July 28, 1980.
His right to ongoing medical treatment was preserved in the award.
On
September 17, 2012, Eldorado filed a medical dispute challenging bills submitted
by Medical Services of America on August 15, 2012 for treatment with a
nebulizer. Attached to his response,
Chapman submitted a one-page prescription pad note from Dr. Michael Trivette,
his family physician, dated September 20, 2012.
The note reads, “Jack is using a Nebulizer/needs
a Nebulizer for the Tx of Blacklung – not controlled with MDIs.” Chapman later filed a letter from Dr.
Trivette dated February 13, 2013, in which he indicated he had been treating
Chapman for CWP and that, in his opinion, the nebulizer is required to
adequately treat the condition. Eldorado
filed a utilization review report prepared by Dr. Bart Olash, who opined there
is no association between the nebulizer treatment and simple CWP.
The
ALJ ultimately found the treatment reasonable and necessary, and Eldorado
appealed. In an Opinion rendered October
25, 2013, this Board vacated the ALJ’s opinion and remanded the matter. Specifically, we determined the ALJ had
failed to make a specific determination regarding whether the nebulizer
treatment is causally related to Chapman’s CWP.
The
ALJ issued an Order on Remand dated February 26, 2014. He noted Dr. Trivette’s hand written
prescription pad note, though he did not specifically reference the February
13, 2013 letter. Emphasizing his
position as Chapman’s treating physician, the ALJ determined Dr. Trivette’s
opinion to be the most compelling and persuasive evidence. Furthermore, the ALJ explained why he was not
persuaded by Dr. Olash’s report, noting the fact he did not personally examine
Chapman. Eldorado’s subsequent petition
for reconsideration was denied.
On
appeal, Eldorado argues the ALJ’s determination with respect to causation is
not supported by substantial evidence.
It emphasizes a point not directly addressed by the ALJ in his Order on
Remand. On the health insurance claim
forms submitted by Eldorado, the diagnosis code noted related to chronic airway
obstruction, not CWP. Dr. Trivette
signed a physician’s order form submitted with each of these bills which also
designates a code relating to chronic airway obstruction, not CWP. However, as noted by the ALJ, there is no
evidence in the record that Chapman has ever been diagnosed with chronic airway
obstruction.
In
a post-award medical dispute, the burden of proof regarding work-relatedness
lies with the employee, while the employer bears the burden of challenging
reasonableness and necessity.[1] Mitee Enterprises v.
Yates, 865 S.W.2d 654 (Ky. 1993).
Because Chapman successfully established causation, the question on
appeal is whether substantial evidence supports the ALJ’s decision. Wolf Creek Collieries v.
Crum, 673 S.W.2d 735 (Ky. App. 1984). “Substantial evidence” is defined as evidence
of relevant consequence having the fitness to induce conviction in the minds of
reasonable persons. Smyzer
v. B. F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 1971). 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. Magic Coal Co. v. Fox,
19 S.W.3d 88 (Ky. 2000). Rather,
it must be shown there was no evidence of substantial probative value to
support the decision.
There
was scant evidence presented in the case.
Chapman relied solely on Dr. Trivette’s opinion, while Eldorado
submitted only Dr. Olash’s report. Upon
review of the totality of the evidence, we cannot conclude the ALJ’s
conclusions are so unreasonable as to require reversal. Notwithstanding the codes on the physician’s
order form, Dr. Trivette subsequently stated in his medical opinion that the
nebulizer is required for treatment of Chapman’s CWP. Jackson
v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979) (an ALJ
may draw reasonable inferences from
the evidence, 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). Dr. Trivette’s opinion, though not elaborated
upon, is unequivocal and constitutes the requisite substantial proof necessary
to support the decision. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986). For this reason, the Board is without
authority to reweigh the evidence and find in Eldorado’s favor.
For
the foregoing reasons, the February 26, 2014 Order on Remand and the April 7,
2014 Order Overruling Petition for Reconsideration rendered by Hon. Steven G.
Bolton, Administrative Law Judge are hereby AFFIRMED.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON SARAH K MCGUIRE
P.O. BOX 351
PIKEVILLE, KY 41502
COUNSEL
FOR RESPONDENT:
HON HERBERT DESKINS
PO BOX 1199
PIKEVILLE, KY 41502
ADMINISTRATIVE
LAW JUDGE:
HON STEVEN BOLTON
PREVENTION PARK
657 CHAMBERLIN AVE
FRANKFORT, KY 40601
[1] It appears debate currently exists as to the burden of proof in post-award medical fee disputes, and the weight to be afforded the unpublished decision of the Kentucky Supreme Court in C&T of Hazard v. Stallings, 2013 WL 5777077 (Ky. 2013). See Sumitomo Elec. Wiring v. Kingery, ___ S.W.3d ____, 2014 WL 2916965 (Ky. App. 2014). In this case, we have stated the law as it presently stands under final and published authority. Furthermore, we do not believe it alters our holding herein, as our ultimate determination is that the ALJ’s decision is based on substantial evidence.