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Commonwealth
of Kentucky
Workers’
Compensation Board
OPINION
ENTERED: October 31, 2014
CLAIM NO. 200797230
DAWN MICHELLE COX PETITIONER
VS. APPEAL FROM HON. JOHN B. COLEMAN,
ADMINISTRATIVE LAW JUDGE
TOYOTA MOTOR MANUFACTURING, KY, INC.
BALLARD WRIGHT, M.D.;
M. JOSEPH MEDICAL;
and
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Dawn
Michelle Cox (“Cox”) appeals from the June 12, 2014 Order on Reconsideration
rendered by Hon. John B. Coleman, Administrative Law Judge (“ALJ”). In a reopening for a medical dispute, the ALJ
determined on reconsideration certain medications were non-compensable. Cox argues the ALJ impermissibly reconsidered
the merits of the case, and the order on reconsideration did not merely address
a patent error. Alternatively, Cox
argues she is not barred from receiving medical benefits for her psychological
condition. We disagree and affirm.
Cox initially injured her back on
December 16, 1991 while employed by United Parcel Service (“UPS”). She underwent lumbar surgery and settled her
claim (1992-48900). She sustained a
second lumbar injury on March 30, 1998 (1998-61113) while employed with Toyota
Motor Manufacturing Kentucky, Inc. (“Toyota”).
She underwent a second lumbar surgery; UPS and Toyota agreed to split
future medical expenses relating to the injury.
Cox sustained a third injury on October 24, 2005 while working for
Toyota. She underwent a three level
lumbar fusion. By agreement approved
November 1, 2011, Cox and Toyota settled the claim for a lump sum of $125,000.00. The agreement included a buyout of the right
to reopen, and a waiver and release from any liability for additional claims
with the exception of medical treatment for the back. The agreement provided the ALJ would
determine the extent of Toyota’s liability for medical benefits. In a December 14, 2011 order, the ALJ found
the October 24, 2005 event led to the fusion surgery and was an intervening
superseding event which broke the chain of causation relieving UPS of any
further responsibility regarding the low back injury. Thus, Toyota is solely responsible for the
subsequent medical treatment.
Toyota filed a motion to reopen and
medical dispute on December 12, 2013. It
challenged the reasonableness and necessity, as well as work
relatedness/causation, of ongoing treatment for pain management, anxiety, depression
and constipation. Toyota supported its
motion with the October 1, 2013 physician review report of Dr. Timothy
Dawson. Dr. Dawson recommended
certification of requests for thirty day prescriptions of
Hydrocodone-Acetaminophen, Avinza, Cymbalta, Celebrex and Amitiza. He provided a detailed discussion concerning
the monitoring and effectiveness of the medications, recommending downward
titration of Hydrocodone and Cymbalta.
Additional certification of Celebrex would require evidence of
measurable subjective and/or functional benefit and the need for
continuation. Additional certification
of Amitiza would require evidence of continued opioid usage and documentation
of gastrointestinal complaints including constipation.
Dr. Russell Travis performed an
independent medical evaluation on December 4, 2012. Dr. Travis noted Cymbalta is used to treat
depression and anxiety and is prescribed off-label for diabetic peripheral
neuropathy, fibromyalgia or other neuropathic pain. Trazadone and Bupropion are used to treat
depression and anxiety. Dr. Travis
opined prescriptions for Cymbalta, Trazedone and Bupropion were not related to
the October 24, 2005 work injury. He
observed Cox had a longstanding pre-existing history of anxiety and depression
with multiple life stresses. Cox
reported she had been in therapy “my whole life.” Dr. Travis opined the use of Celebrex was not
related to the 2005 injury because Cox had longstanding degenerative changes
related to prior lumbar discectomies and the natural aging process. He felt the multiple anti-constipation
medications were not related to the 2005 injury but were related to excessive
use of opioids. He recommended weaning Cox
from opioids on an outpatient basis.
Cox submitted medical records from Dr.
Ballard Wright documenting treatment from September 10, 2013 through January 6,
2014. Dr. Wright diagnosed low back
pain; spondylosis without myelopathy; lumbar facet arthropathy; lumbar neuritis
and radiculitis; lumbar degenerative disc disease and degenerative joint
disease; and myofascial pain syndrome.
On September 10, 2013, Dr. Wright listed her current medications as
Amitiza, Kristalose, Phenergan, Celebrex, Colace, Cymbalta, Lortab, Vistaril,
Anaflex, Avinza, Detrol La, Lisinopril, Trazadone, and Wellbutrin. He noted her medication allows her to
function relatively well. She continues
to have difficulty with back pain but gets partial relief with the
medication. He noted she has seen her
psychiatrist and is being prescribed Xanax.
A January 6, 2014 note lists the same medications and indicates Relistor
has been helpful for her constipation.
Toyota filed additional records from
Dr. Wright and The Pain Treatment Center, Inc.
Those records contained an April 22, 2014 note from Rebecca Moore
(“Moore”), APRN who noted Cox was initially seen in March 2007 when she was
evaluated for low back and left leg pain.
Moore noted Cox’s medication regimen has remained generally stable since
that time. In addition to pain
medication, Cox used Cymbalta, a commonly used anti-depressant widely known to
improve pain control in chronic pain patients, when used as an adjuvant
medication therapy. Cox also used
Vistaril to address anxiety and sleep deficiencies resulting from chronic pain. Finally, Moore noted Cox used Colace, Amitiza
and/or Relistor as needed for relief of constipation associated with chronic
opioid use.
The ALJ rendered his Opinion and Order
on May 12, 2014 finding the contested medication allowed Cox to function
relatively well, provided good pain control, and was not outside the type of
treatment generally recommended by the medical profession or otherwise
dangerous to her health. Accordingly,
the ALJ found the treatment to be reasonable and necessary.
Toyota filed a petition for
reconsideration arguing the ALJ erred in making Toyota responsible for Relistor
because it was not part of the medical dispute.
Toyota also argued the ALJ failed to address the issue of causation
regarding prescriptions for drugs to treat depression and anxiety.
The ALJ issued his order on
reconsideration on June 12, 2014 finding Cox was aware of her depression and
anxiety but withdrew her allegation of a mental condition in the original
litigation. Citing Ramsey v. Sayre
Christian Village Nursing Home, 239 S.W.3d 56 (Ky. 2007) and Slone v.
Jason Coal Co., 902 S.W.2d 820 (Ky. 1995), the ALJ determined any claim for
treatment of the psychological condition was barred. The ALJ ruled Cymbalta, Trazadone, Bupropion
and Vistaril were medications utilized for treatment of the mental health condition
and are non-compensable. The ALJ
sustained the petition to the extent Relistor was not at issue in the
reopening, but noted Toyota is entitled to file an additional medical dispute
to contest that medication.
On appeal, Cox argues the ALJ improperly
reconsidered the merits of the case. Cox
argues the original determination of compensability was supported by
substantial evidence. She notes the
medical records from the Pain Treatment Center indicate all medications are
prescribed for chronic pain due to the low back injury and not for her mental
state.
The scope of the ALJ’s authority in ruling on a petition
for reconsideration is not strictly limited to the correction of clerical
errors. KRS
342.281 “precludes an ALJ … from reconsidering the case on
the merits and/or changing the findings of fact.” Garrett Mining Co. v. Nye, 122 S.W.3d
513 (Ky. 2003). However, the ALJ may
also correct any patent errors appearing on the face of the award. Wells v. Beth-Elkhorn Coal Corp., 708
S.W.2d 104 (Ky. App. 1985).
Upon careful consideration, we
conclude the ALJ corrected a patent error by amending the opinion. The original opinion did not address the
issue of work-relatedness, an issue preserved in the benefit review conference
order. The failure to make required
findings is an error that is correctable on reconsideration. Eaton
Axle Corp. v. Nally, 688 S.W.2d 334
(Ky. 1985). Thus,
after addressing work-relatedness, the ALJ had the authority to reverse the
finding regarding compensability of the contested medications.
Alternatively, Cox argues that if
Toyota’s petition is not a re-argument of the case and the medications are for
depression and anxiety, the medications are still compensable. She notes the ALJ found she suffered from “a
great deal of pain with related depressive symptoms” and thus her symptoms stem
from the same March 24, 2005 work injury that resulted in the three level
fusion surgery.
Substantial
evidence exists to support the ALJ’s finding any claim Cox might have for a
mental health condition is barred by the doctrine expressed in Slone
v. Jason Coal Co., 902 S.W.2d 820. In Slone, the injured worker filed a workers’
compensation claim and a social security disability claim. The worker introduced psychiatric evidence in
support of the disability claim, but failed to assert a psychiatric condition
in the workers’ compensation claim. The
workers’ compensation claim was fully litigated and finally adjudicated in a
written opinion by an ALJ. The claimant
later filed a motion to reopen his workers’ compensation claim asserting a
worsening of his psychiatric impairment.
The Supreme Court held as
follows:
. . . In any event, either by means of a new claim or a motion to
reopen, Slone would be prevented from presenting psychiatric evidence at this
time because it is more than two years after the date of the original injury
and it was not raised in the initial complaint although it was known to him by
the use of ordinary prudence and diligence.
It is the holding of this Court that a motion to reopen pursuant
to KRS 342.125 may not be based on a condition known to the claimant
during the pendency of his original
claim but which he did not present.
In Ramsey v. Sayre Christian Village
Nursing Home, 239 S.W.3d 56 (Ky. 2007), an
ALJ dismissed a post-award claim for medical benefits related to depression
because the claimant knew of her condition but failed to bring a claim for
depression in her initial back injury claim.
Shortly after the back injury, she saw a doctor and was crying and
complaining of muscle spasms. The doctor
prescribed medication for depression and anxiety in addition to the pain
medication. Ramsey also testified the doctor
had recently prescribed anti-depressants.
Medical notes documented depression and prescriptions for Prozac and
Elavil. The medical testimony and
Ramsey’s own testimony established Ramsey had significant psychological
problems as a result of the work injury.
The back injury and her depression were the basis of the social security
disability award. In spite of that fact,
Ramsey failed to amend her workers’ compensation claim to include a claim for
depression. The ALJ awarded benefits
based solely upon the physical injury and found the employer responsible for
appropriate medical benefits. The ALJ
concluded, pursuant to KRS 342.185(1), KRS 342.270(1) and Slone,
Ramsey’s present claim for psychological symptoms and any medical treatment
from the effects of that injury were barred.
The Supreme Court affirmed the ALJ’s dismissal of Ramsey’s claim for
medical benefits related to the depression.
Because the initial opinion and award referred only to the back injury
and chronic pain, and no reference was made in the medical or lay testimony to
depression or treatment for depression due to chronic pain, it could not
reasonably be inferred the ALJ intended the award to include treatment for
depression. The Supreme Court concluded
the ALJ did not err in dismissing the claim for depression because Ramsey
obviously knew of her depression in the initial proceeding and failed to assert
entitlement to medical benefits until more than two years after the award.
Here, as noted by the ALJ, Cox
asserted a psychological component in the original litigation. However, she withdrew it and only pursued the
physical injury claim. Following a
settlement agreement, the ALJ resolved any remaining issues in the December 14,
2011 order. The April 22, 2014 note from
Moore indicated the medication regimen has remained generally stable since
March, 2007, including Cymbalta, an anti-depressant, and the use of Vistaril to
address anxiety as well as sleep deficiencies resulting from chronic pain. It is clear substantial evidence
supports the ALJ’s finding that the doctrine expressed in Slone
precludes
compensability of the medications for treatment of the psychological condition.
Additionally, Dr. Travis unequivocally
stated use of Cymbalta, Trazadone, and Bupropion is unrelated to the 2005 work
injury, but rather due to a long pre-existing history of anxiety and depression
and multiple life stresses. His opinion
is substantial evidence indicating those medications are not treatment for a
work-related condition. Special Fund v. Francis, 708 S.W.2d 641 (Ky.
1986). Finally,
we note the ALJ’s statement that Cox suffered “a great deal of pain with
related depressive symptoms” appears to be part of the ALJ’s summary of Cox’s
position on appeal rather than a finding of fact.
Accordingly, the June 12, 2014 Order
on Reconsideration rendered by Hon. John B. Coleman, Administrative Law Judge
is hereby AFFIRMED.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON CHARLES W GORHAM
3151 BEAUMONT CENTRE CIR STE 202
LEXINGTON, KY 40513
COUNSEL
FOR RESPONDENTS:
HON KENNETH J DIETZ
1511 CAVALRY LANE, SUITE 201
FLORENCE, KY 41042
HON KATHLEEN LUCHTEFELD
2416 REGENCY ROAD
LEXINGTON, KY 40503
RESPONDENT:
M JOSEPH MEDICAL
P O BOX 436559
LOUISVILLE, KY 40253
ADMINISTRATIVE
LAW JUDGE:
HON JOHN B. COLEMAN
PREVENTION PARK
657 CHAMBERLIN AVE
FRANKFORT, KY 40601
