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Commonwealth
of Kentucky
Workers’
Compensation Board
OPINION ENTERED: October 10, 2014
CLAIM NO. 198806899
GREGORY McCORD PETITIONER
VS. APPEAL FROM HON. CHRIS
DAVIS,
ADMINISTRATIVE
LAW JUDGE
LOUISVILLE METRO GOVERNMENT
CITY OF LOUISVILLE
DEPARTMENT OF
PARKS AND RECREATION
(USC/TPA)
and
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
* * * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Gregory McCord (“McCord”), pro se, appeals from the October 4, 2013
Opinion and Order and the November 4, 2013 order on reconsideration rendered by
Hon. Chris Davis, Administrative Law Judge (“ALJ”). In a reopening for a medical dispute, the ALJ
determined a settlement agreement regarding a requested mattress was
enforceable. The ALJ ordered McCord to
attend a detoxification facility and denied a motion by Louisville Metro
Government (“Metro”) to select a treating physician for McCord. On appeal, McCord argues the settlement
agreement is fraudulent and unenforceable, and his current treatment is
reasonable and necessary. We affirm.
Metro filed its motion to reopen and
medical dispute on October 29, 2012 to contest the reasonableness and necessity
of a Tempur-Pedic mattress recommended by Dr. Rickey
Kinzey. Metro supported the motion with
the September 24, 2012 utilization review denial of Dr. Bart Olash, who stated
the mattress is not reasonable or medically necessary. Dr. Olash noted there were no well-designed
clinical studies indicating objective clinical improvement with adjustable
Tempur-Pedic mattresses in post-surgical failed back syndrome.
Metro also submitted the report of Dr.
John Rademaker, who performed a peer review appeal on October 2, 2012. Dr. Rademaker noted the document submitted by
Dr. Kinzey is neither peer reviewed research nor is it a published paper. Like Dr. Olash, he similarly stated there is
no scientific basis for the use of the mattress for post-laminectomy syndrome. He also concluded the mattress is not
reasonable or necessary treatment for the work injury.
Metro filed an addendum to the motion
to reopen and medical dispute on March 4, 2013 to contest an increase in
McCord’s opioid medication, as recommended by Dr. Kinzey. Metro again relied upon Dr. Olash, who agreed
the drug is medically necessary, but questions whether the proposed increase is
work-related. Rather, Dr. Olash recommended
the dosage should be tapered rather than increased.
During the pendency of the reopening,
Metro submitted a partial settlement agreement which was approved by J. Landon
Overfield, Chief Administrative Law Judge (“CALJ”) on March 19, 2013. The agreement provided McCord would receive a
lump sum of $3,000.00 to resolve the mattress issue. Metro remained responsible for all other
reasonable, necessary, and related medical expenses. Each page of the agreement bears the initials
“GM” in the lower right corner.
On March 21, 2013, Metro filed a
motion to select a physician to treat McCord.
It alleged Dr. Kinzey’s current treatment plan provided no reasonable
benefit. Metro noted Dr. Olash and Dr. Ellen
Ballard opined the narcotic medication should be tapered.
McCord filed voluminous records from
Dr. Kinzey, who has managed his pain since April 28, 2008. On June 4,
2012, Dr. Kinzey requested a medical bed with a mattress to reduce pressure on
McCord’s spine and legs. On August 30,
2012, he recommended a Tempur-Pedic mattress with capability of raising the
foot and head and an adjustable speed massage feature. On September 16, 2012, Dr. Kinzey stated a
twin bed would limit McCord’s ability to turn over, whereas a queen bed would
allow him to be more comfortable. On
July 11, 2013, Dr. Kinzey outlined treatment options for treating McCord’s pain
including changing to a different opioid medication, titrating from all pain
medication with inpatient detoxification, and implantation of a device for pain
control such as a spinal cord stimulator or an intrathecal drug administration
system.
Dr. Ballard performed an independent
medical examination on March 13, 2013.
She noted McCord had signs of opioid hyperalgesia and recommended
tapering of narcotic medications, possibly involving institutionalization or an
inpatient program. She opined the
treatment being rendered by Dr. Kinzey is not reasonable or necessary for the
1987 work injury. She specifically
challenged the recent increase in the dosage of Oxycontin as unreasonable and
unnecessary.
A Benefit Review Conference (“BRC”) was
held on July 9, 2013. The BRC order
reflects the contested issues remaining were unpaid or contested medical
expenses, medical fee dispute regarding work-relatedness and reasonableness and
necessity of medications, and the motion to select McCord’s physician.
The ALJ issued his Opinion and Order
on October 4, 2013 finding the settlement agreement enforceable. The ALJ rejected McCord’s contention that he
signed an agreement different from the agreement approved by the CALJ. Finding the settlement agreement otherwise
valid, the ALJ concluded McCord had waived his right to the mattress. Therefore, it was unnecessary for the ALJ to
determine the reasonableness and necessity of the mattress.
Regarding the pain medication issue,
the ALJ noted Dr. Kinzey’s recommendation for detoxification followed by
consideration of a spinal cord stimulator.
He ordered Metro to pay for pain medications until McCord attends an
appropriate inpatient detoxification facility.
Finally, the ALJ denied Metro’s motion to select McCord’s treating
physician.
McCord filed a petition for
reconsideration of the detoxification recommendation, and requesting that the
carrier pay for care necessary to address his pain and lack of mobility. McCord expressed his intent to detoxify on
his own without the use of an overnight facility. In denying the petition, he discouraged
McCord from self-detoxification and clarified that if McCord and Dr. Kinzey did
not submit a medical plan for detoxification by December 15, 2013, Metro would
no longer be responsible for payment of medications.
On appeal, McCord first argues the
settlement agreement tendered by Metro is fraudulent. He again insists the agreement he signed
contained only two pages which were not numbered, and which he did not initial
at the bottom. Therefore, he reasons the
agreement is invalid and the insurer should be required to pay for the
requested mattress.
We find no error in the ALJ’s determination
that the settlement agreement is enforceable.
The ALJ was simply not persuaded by McCord’s testimony, nor that of Ms. Cleo Mertz, that the agreement he signed
differed from the agreement tendered by Metro and approved by the CALJ. The ALJ is the sole judge of the credibility
of the witnesses and the weight to be accorded 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). While McCord’s
testimony could have supported a finding in his favor, other evidence indicated
the settlement agreement was properly executed and approved by the CALJ, and
therefore enforceable. The ALJ acted
within his discretion in determining which evidence to rely upon. Whittaker v. Rowland,
998 S.W.2d 479 (Ky. 1999).
Because substantial evidence supports the ALJ’s factual findings
regarding the settlement agreement, this Board is not at liberty to disturb the
decision. Special Fund v. Francis,
708 S.W.2d 641 (Ky. 1986).
McCord next challenges the ALJ’s
reliance on Drs. Olash and Ballard.
Essentially, he argues Dr. Kinzey’s current treatment regimen is
reasonable, necessary and work-related.
Because Drs. Olash and Ballard do not regularly treat him, McCord
contends their opinions should not be considered.
The record contained ample evidence
that McCord’s dosage of narcotic pain medication was excessive. Even Dr. Kinzey, his treating physician,
ultimately recommended detoxification in his treatment options. Dr. Ballard likewise recommended a tapering
of the dosage and detoxification. The
ALJ was free to rely on the opinions of Drs. Olash and Ballard. While a treating physician may be in a better
position than an evaluating physician to evaluate the patient’s condition,
nothing in Chapter 342 mandates greater weight be given to a treating physician’s testimony. Wells v. Morris, 698 S.W.2d 321 (Ky.
App. 1985); Sweeney v. King’s Daughters Medical Center, 260 S.W.3d 829,
830 (Ky. 2008). The ALJ’s decision did
not relieve Metro of liability for any medical expenses unless McCord fails to
undergo detoxification at an approved facility.
McCord also raises matters on appeal
that are not properly before the Board, including requests that the carrier be
prohibited from contacting him directly, that it not be allowed to deny
coverage of medical procedures and counseling sessions for depression, and that
a third party audit be done regarding payment of past benefits. We are not at liberty to rule upon matters
that have not been presented to the ALJ for determination. However, we note that, following the detoxification,
Metro remains responsible for reasonable and necessary treatment of McCord’s
pain by Dr. Kinzey and it retains the ongoing responsibility to promptly pay or
challenge any future treatment.
Accordingly, the October 4, 2013
Opinion and Order and the November 4, 2013 order on reconsideration rendered by
Hon. Chris Davis, Administrative Law Judge, are AFFIRMED.
ALL CONCUR.
PETITIONER (PRO SE):
GREGORY MCCORD
3000 FOGEL RD
CORYDON, IN 47112
COUNSEL FOR RESPONDENT:
HON DENIS KLINE
333 GUTHRIE GREEN STE 203
LOUISVILLE, KY 40202
ADMINISTRATIVE LAW JUDGE:
HON CHRISTOPHER DAVIS
PREVENTION PARK
657 CHAMBERLIN AVE
FRANKFORT, KY 40601
