*/
Workers’
Compensation Board
OPINION
ENTERED: December 12, 2014
CLAIM NO. 200694713 & 200573259
LEE ROY NEWSOME PETITIONER
VS. APPEAL FROM HON. EDWARD
D. HAYS,
ADMINISTRATIVE LAW JUDGE
KENTUCKY TRANSPORTATION CABINET
PIKEVILLE MEDICAL CENTER
MCDOWELL ARH
DR. DUANE DENSLER
GREATER MEDICAL ADVANCE, INC.
and HON. EDWARD D. HAYS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
IN PART, VACATING IN PART,
AND
REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Lee Roy Newsome (“Newsome”) seeks review of the February 10, 2014, Opinion and
Order rendered by Hon. Edward D. Hays, Administrative Law Judge (“ALJ”)
resolving multiple medical fee disputes in favor of the Kentucky Transportation
Cabinet (“Cabinet”) and overruling Newsome’s motion to reopen seeking temporary
total disability (“TTD”) benefits and additional permanent income
benefits. Newsome also appeals from the
March 19, 2014, Order ruling on his petition for reconsideration.
Newsome sustained a work-related low back injury on August
9, 2005, Claim No. 200573259, and a low back and left knee injury on February
13, 2006, Claim No. 200694713. In a May
30, 2009, Opinion, Award, and Order, Hon. John B. Coleman, Administrative Law
Judge (“ALJ Coleman”) determined Newsome sustained a 5.5% impairment rating as
a result of the 2005 low back injury which pursuant to KRS 342.730(1)(b)
translated to a 4.675% permanent partial disability. Newsome’s benefits were enhanced by the two
multiplier contained in KRS 342.730(1)(c)2 on August 2, 2007, when his work was
terminated. ALJ Coleman determined the 2006
injury resulted in a 7.5% impairment rating which pursuant to KRS 342.730
translated to a 6.375% permanent partial disability. Of the 7.5 impairment rating, ALJ Coleman
determined the back injury resulted in a 5.5% impairment rating and the knee
injury a 2% impairment rating. Newsome’s
income benefits for this injury were also enhanced by the two multiplier on
August 2, 2007. The decision was not
appealed.
On April 13, 2010, the Cabinet filed a motion to reopen and
motion to join Pikeville Medical Center contesting emergency room treatments
Newsome received on January 14, 2010, February 17, 2010, and February 27,
2010. The Cabinet also contested an MRI
performed on February 17, 2010, at Pikeville Medical Center. Subsequently, the Cabinet filed another
medical fee dispute and Form 112 concerning Greater Medical Advance Inc.’s
request for a nerve conduction study.[1] The Cabinet later filed another medical fee
dispute and motion to join McDowell Appalachian Regional Hospital (“McDowell
ARH”) regarding emergency room services rendered on February 21, 2011. It filed another medical fee dispute and
motion to join Dr. Duane Densler concerning his request for approval of fusion
surgery at L4-5 and L5-S1. Even though
the surgery was contested, Newsome underwent surgery performed by Dr. Densler
on November 23, 2011.
On May 24, 2012, Newsome filed a motion to reopen seeking
TTD benefits and additional permanent income benefits. In support of his motion, Newsome filed his
affidavit as well as voluminous medical records. The Cabinet filed a Form 111 denying Newsome’s
motion. On June 15, 2012, the Cabinet
filed another medical fee dispute regarding Newsome’s request for reimbursement
of mileage and out-of-pocket expenses for visits to Commonwealth Quality
Healthcare, LLC. Voluminous medical
records were introduced by both parties and Newsome’s September 6, 2013,
deposition and Dr. Russell Travis’ October 17, 2012, deposition were
introduced. Newsome testified at the
November 20, 2013, hearing.
Newsome’s deposition testimony reveals he last worked in
July 2007. He believes the surgery
performed by Dr. Densler has worsened his symptoms as his back is stiff and he has
difficulty bending over. Newsome has
constant back pain and his muscles are “tied up.” Occasionally, he has pain shooting down his
leg, and he also experiences sharp pain extending into his testicles. Newsome’s knee pops, cracks, and locks
up. At the time of his deposition, he
was undergoing pain management at Elite Healthcare in Nashville,
Tennessee. He had previously sought pain
management at Greater Medical Advance in Wheelersburg, Ohio, which is
approximately a two and half hour drive one way. Newsome explained he went to Ohio because he
could not “get in around here.” To
secure Elite Healthcare Services, Newsome drives five hours one way once a
month. Elite Healthcare Services
provides all of his medication. At the
time of his deposition, Newsome took Neurontin four times daily, Paxil once a
day, Klonopin three times daily, Oxycontin two times daily, and Oxycodone three
times daily. This medication is filled by
Deal Drug in Tennessee which is located next to the pain management
clinic. He is no longer treating with Greater
Medical Advance, Inc. because it shut down.
His family physician is Dr. Jeremy Parson who administers a testosterone
shot every month and prescribes other medications for conditions unrelated to
the work injuries. Newsome has not seen
Dr. Densler since his surgery.
Approximately a year and half prior to his deposition, Newsome returned
to the specialist in Lexington who performed the surgery on his knee and was
advised there was nothing else to be done for his knee.
Newsome testified Medicare pays for
all the medication prescribed by Elite Healthcare Services but he pays for the
visits to Elite Healthcare Services.
Prior to going to Elite Healthcare Services, Newsome had gone to
Kentucky Pain in Prestonsburg for over a year for which he submitted his
receipts and mileage.[2] The Cabinet has yet to reimburse him for
those expenses. He believes he last went
to Kentucky Pain in September or October 2012.
After the surgery, Newsome was
involved in a motor vehicle accident (“MVA”) approximately a year and a half
before his deposition. The MVA resulted
when Newsome attempted to avoid hitting children on four wheelers. He explained that in the course of jumping out
of his car, he was dragged a short distance before the car went approximately
75 or 100 feet down a hill. He was treated
by McDowell ARH.
At the November 20, 2013, hearing, Newsome testified he
went to the emergency room at Pikeville Medical Center three times because his
back was causing him significant pain and his regular doctor’s office was not
open. Newsome explained he went to the
emergency room at McDowell ARH because of the lateness of the hour and he had
taken about all he could that day. He
explained he could not sit, stand, or lay down.
He received a pain shot, muscle relaxers, and an MRI was performed. Because his condition had become so bad and
because Dr. Densler said he needed it, Newsome underwent surgery. Regarding the treatment he received from
Commonwealth Quality Healthcare, he explained he started treatment in
approximately June or July 2010 pursuant to the recommendation of Dr. Parsons.[3] Newsome believes the surgery has “messed
[him] up.” The nerves in his arms and
legs jerk and he has constant pain in the left side. His knee gives way and locks up. He stated that he cannot drive his racecar or
exercise. He explained that prior to the
surgery he could work and engage in sports.
Newsome believes he cannot perform any work which involves sitting or
standing. He testified the doctors who
referred him to Dr. Densler knew of his work injuries.
On cross-examination, Newsome acknowledged he had returned
to work at the same job two months after his 2006 work injury and worked there
for approximately a year and a half until he was fired for shooting at a
turkey. Except for Klonopin, he still
takes the medication he listed in his deposition. Newsome acknowledged he was involved in another
MVA, different from the one he recounted in the deposition, which occurred on
the Mountain Parkway when he hit a guardrail.
He was unable to explain what happened on that date. He was treated at Pikeville Medical
Center.
In the opinion and order, after identifying the contested
issues and summarizing the evidence, the ALJ provided the following analysis,
findings of fact, and conclusions of law:
Based
on a review of the record of this claim, including the summary and discussion
of the evidence as set forth herein, the ALJ does hereby make the following
findings of fact and conclusions of law.
First,
the stipulations made and entered into by and between the parties at the
Benefit Review Conference on October 7, 2010, and the Benefit Review conference
conducted by video on September 9, 2013, as set forth hereinabove, are approved
and incorporated herein by reference as findings of fact.
The
ALJ will not summarize all of the medical evidence contained in the record of
this file, particularly medical evidence submitted prior to Judge Coleman’s
opinion in 2008. However, the ALJ has reviewed all the medical evidence and
will discuss the relevant or pertinent medical evidence contained within the
file as it relates to the contested issues.
Duane W. Densler, M.D. – Dr. Densler
acknowledged he was unable to determine if surgery he performed on November 23,
2011, was causally related to the injuries of either August 9, 2005, or
February 13, 2006. Dr. Densler diagnosed lumbar degenerative disease and
thought a lumbar fusion was reasonable for treatment of that condition.
However, it must be remembered that Plaintiff’s work injuries in 2005 and 2006
involved a strain or sprain of the low back on each occasion. An injury to the
left knee also occurred at the time of the second accident. After careful
examination of the evidence herein, the ALJ finds that the fusion surgery
performed by Dr. Densler on November 23, 2011, was not related to the injuries
by Plaintiff on either August 9, 2005, or on February 13, 2006. Not only is
this finding supported by the evidence by Dr. Densler, but it is also supported
by evidence of Dr. Russell Travis, who opined it was not related to the work
injury; Dr. Mark Swofford, who opined the Plaintiff’s condition is not related
to the work injuries; Dr. Wolens; Dr. Sheridan, and even Dr. Nazar, who
reported that Plaintiff’s condition did not require surgical intervention. The
record of this claim contains no substantial evidence that connects the
degenerative changes in Plaintiff’s low back to the sprain/strain he incurred
several years earlier.
Pursuant
to KRS 342.125, a plaintiff may reopen a case for ‘change of disability as
shown by objective medical evidence of worsening … of impairment due to a
condition caused by the injury since the date of the Award.’ KRS 342.0011(33)
defines ‘objective medical findings’ as information gained through direct
observation and testing of the patient applying objective or standardized
methods.’ Staples v. Konvelski, 56 S.W.3d 412 (Ky. 2001).
In
Colwell v. Dresser Instruments, 217 S.W.3d 213, 218 (Ky. 2007) the
Kentucky Supreme Court held that if objective medical findings demonstrate an
injured worker suffers a greater loss of use or organ function due to a
condition caused by the injury, then the worker has demonstrated a worsening of
impairment. Applying this standard to the case herein, the evidence simply does
not support a finding that Plaintiff’s condition was ‘caused by the injury.’
Plaintiff
having failed to show work-relatedness/causation of the surgery performed by
Dr. Densler, then obviously Plaintiff is not entitled to temporary total
disability benefits during his recovery period and he is further not entitled
to compensation for any of the negative consequences he incurred as a result of
the fusion surgery.
With
respect to the medical fee disputes, the Defendant-Employer has filed six MFDs,
as set forth above in the Statement of the Case. First, with respect to the
Pikeville Medical Center’s emergency room visits on 02/17/10 and 02/27/10, Dr.
Wolens found neither visit to be reasonable and necessary for treatment of
chronic lumbar pain. Plaintiff was already receiving care and medications for
the primary condition. Whereas, an MRI was reasonable and necessary in light of
Plaintiff’s fever in order to rule out spinal infection, there is no
substantive evidence that same was related to a lumbar strain that occurred in
2005 or in 2006. Based on this evidence, as well as the opinion of Dr. Travis,
the ALJ finds the emergency room visits to be non-compensable.
The
emergency room visits to McDowell ARH on 01/14/10 and 02/21/11 involved a
history of fever and low back pain. The Plaintiff was diagnosed with pneumonia,
Dr. Daniel Wolens performed a Utilization Review on the issue of
compensability. Dr. Wolens opined that treatment at the emergency room was for
the pneumonia and associated body pains. Any increase in the Plaintiff’s
mechanical low back pain (resulting from the work injuries) would not have
necessitated emergency treatment. Dr. Travis also found the emergency room
visits to be neither reasonable nor necessary. Based on this evidence, the ALJ
finds these two emergency room visits to be non-compensable.
Plaintiff
was treating at Greater Medical Advance when nerve conduction studies were
requested by Dr. Georgescu. Dr. Travis reviewed the request and opined there
was ‘no indication whatsoever’ for nerve conduction studies. The Plaintiff is
no longer treating with Greater Medical Advance because the facility has been
closed. Elite Health, Plaintiff’s new pain management, has not requested nerve
conduction studies. Thus, this issue is moot.
Plaintiff’s
request for lumbar fusion at L4-L5 – L5-S1 by Dr. Densler has already been
discussed. The ALJ has found above that a lumbar fusion was not causally
connected to or related to the low back strains/sprains incurred by Plaintiff
in 2005 and 2006. Accordingly, since there is no causative relationship, the
said treatment is non-compensable.
The Plaintiff has the burden of proof on all questions of causation, even
though the Defendant-Employer has the burden of proving a procedure is
unreasonable and/or unnecessary. National Pizza Company v. Curry, 802
S.W.2d 949 (Ky. App. 1991).
The
MRI performed during Plaintiff’s visit to the Pikeville Medical Center’s
emergency room on 02/17/10 has already been discussed above. Whereas, the MRI
was reasonable because of the fever from which Plaintiff was suffering, it was
not related to the original work injuries. As noted above, this finding is
supported by both Dr. Wolens and Dr. Travis. Again, the ALJ finds this
emergency room visit and the MRI to be non-compensable.
Finally,
the question of mileage and out-of-pocket expenses incurred by the Plaintiff
relative to nine visits at Commonwealth Quality Healthcare on the dates set
forth above are hereby found to be non-compensable.
The Claimant no longer has a need for pain management relating to his injuries
of 2005 and 2006, and it is unreasonable and unnecessary in the opinion of Dr.
Travis. Plaintiff is taking a substantial amount of narcotics and has been
doing so for many years. Even Dr. Nazar states, ‘I am uncomfortable with the
amount of medications that he is currently taking.’ Plaintiff has reported
losing his medications on multiple occasions and he has developed an apparent
drug dependency. The Defendant-Employer questions the reasonableness and
necessity of his continued use of narcotic drugs and further objects to the
untimely request for reimbursement. In any event, the ALJ find [sic] the
treatments rendered by Commonwealth Quality Healthcare on the dates set forth
above to be unreasonable and unnecessary, and therefore the out-of-pocket
travel expenses are non-compensable.
The
ALJ has carefully read and considered the Opinion, Award & Order rendered
by ALJ John B. Coleman on May 30, 2008. The purpose of this close review is to
ascertain Judge Coleman’s findings as to the extent of the Claimant’s
complaints and impairments resulting from the work-related injuries of August
9, 2005, and February 13, 2006, thereby forming a basis for comparison of Judge
Coleman’s findings and decision, which are res
judicata, with the Plaintiff’s current complaints and impairments. It is
significant to note that Judge Coleman found that Plaintiff returned to work
after each of his two work incidents and continued working until August 2,
2007, when Mr. Newsome was terminated for reasons unrelated to his work
injuries. The ALJ also notes that Dr. Baltrip had already performed surgery on
the Plaintiff’s left knee in February of 2007 and that Plaintiff had already
testified prior to the Opinion of Judge Coleman as to the continuing
difficulties and symptoms he has [sic] having with his knee. He complained that
his knee stayed sore and swollen. He complained that it pops and cracks and
gives out on him. He complained of a constant aching pain in his lower back. In
comparing his symptoms prior to Judge Coleman’s decision with Plaintiff’s
symptoms and complaints that he now expresses, the ALJ notes there is a
remarkable similarity in the complaints. Judge Coleman found that Plaintiff was
released to return to ‘normal work activities’ on April 26, 2006. Judge Coleman
summarized the medical evidence as it existed in 2008, including the opinion of
Dr. Chris Stephens that he felt the August 2005 and February 2006 episodes
represented nothing more than mere exacerbations of chronic ongoing low back
symptoms. Dr. Stephens noted the Plaintiff had been taking narcotics
chronically for many years for musculoskeletal conditions, including his low
back.
Judge
Coleman also noted in his Opinion that the defendant-employer had submitted the
Plaintiff’s job description, which was significant because it indicated
essential elements of the Plaintiff’s job, including lifting heavy objects and
working in uncomfortable positions for extended periods of time. Despite having
noted the nature of the Plaintiff’s job requirements, ALJ Coleman found that
Plaintiff retained the physical capacity to return to the work he was
performing at the time of his injuries. In fact, he did return to his work and
performed all his job requirements. He was able to return to his usual
employment following each of his injuries, but he was terminated for unrelated
reasons on August 2, 2007. ALJ Coleman stated in his Opinion, ‘There is nothing
in the record to indicate that the Plaintiff would not be continuing to work
earning same or greater pay had it not been for his termination for other
grounds.’
Finally,
it is noted that Judge Coleman stated in his Opinion, ‘I am most convinced by
the opinion of Dr. Shraberg that the Plaintiff’s psychiatric condition is not
causally related to his work-related injuries.’ These findings and opinions of
Judge Coleman cannot be modified or altered at this time. The question before
the ALJ is whether the Claimant’s condition has changed, or worsened as he
alleges, as a result of the work-related injuries, and whether Plaintiff is
entitled or not to a reopening of his claim and an increase in his
impairment/disability award.
The
Claimant has been on narcotic medications for many years, even prior to either
of the work-related incidents mentioned herein. He has changed treating
physicians numerous times as he sought to continue to obtain prescriptions for
pain medications. He is now regularly making a ten-hour round-trip to
Tennessee, where he sees a physician who does nothing more than prescribe pain
medications. The Plaintiff stated that he could not get into an office in
Kentucky soon enough to be seen and that other doctors’ offices where he had
tried to make appointments took too long or would not see him. The Claimant
testified, and it is documented above in the discussion of the evidence, as to
the large amount of pain medications he takes.
The
critical issue in this case is whether the low back fusion performed in
November of 2011 was compensable or not. The Workers’ Compensation Insurance
carrier did not approve the surgery, and argued then as it argues now that the
fusion surgery was neither reasonable nor necessary, nor was it causally
related to or necessitated by either of the two work injuries. The surgery was
challenged both on the basis of causation/work-relatedness and the basis of
reasonableness and necessity.
The
surgery was performed by Dr. Duane W. Densler, neurosurgeon. The ALJ needs to
look only to the opinions of Dr. Densler, the treating physician, to answer the
critical question involved concerning the compensability of the spinal fusion
surgery. In the event the spinal fusion was work-related and was reasonable and
necessary, then it would now be compensable as a consequence of the work
injury, and would constitute evidence on which the ALJ would have to determine
whether it constitutes an increase in the impairment/disability of the
Claimant, thereby resolving the question of worsening of condition in favor of
the Plaintiff. On the other hand, if the ALJ finds the spinal fusion was not work-related,
then the increase in the impairment rating under the AMA Guides, 5th
Edition, could not and would not be considered in reaching the decision on the
issue of worsening of condition.
Dr.
Densler having acknowledged he was unable to determine if the surgery he
performed on November 23, 2011, was causally related to the injuries of either
August 9, 2005, or February 13, 2006, and the ALJ having found according to the
opinion of Dr. Densler, which opinion was supported by most of the medical
evidence contained in the file, the issue as to a worsening of condition must
be decided in favor of the Defendant-Employer. The medical expenses challenged
in all the medical fee disputes also having been found to be unreasonable
and/or unnecessary, these disputes must also be determined in favor of the
Defendant-Employer.
Having
found the low back fusion to be unrelated to the initial work injuries, the
issue as to the Plaintiff’s entitlement to temporary total disability benefits
post-surgery must also be decided in favor of the Defendant-Employer.
Newsome filed a petition for
reconsideration alleging the ALJ erred by not addressing his claim of a
worsened left knee condition and denying his claim for additional benefits due
to the worsening of that condition. In
support of this argument, Newsome cited to ALJ Coleman’s award and noted Dr.
Herr assessed a 7% impairment rating and Dr. Sheridan assessed a 4% impairment rating
based on a diagnosis of tears of the medial and lateral menisci. Since ALJ Coleman awarded income benefits
based on a 2% impairment rating and both Drs. Herr and Sheridan assessed
impairment ratings greater than the 2% impairment, Newsome asserted the ALJ
erred in not awarding additional benefits for the worsening of his left
knee.
Newsome also argued the ALJ erred in
not awarding additional permanent partial disability (“PPD”) benefits due to
the worsening of his low back condition.
Newsome cited to the medical and vocational evidence supporting his
position. He also contended the ALJ
erred by not finding the Cabinet responsible for the negative consequences of
the surgical procedure performed by Dr. Densler citing to Elizabethtown
Sportswear v. Stice, 720 S.W.2d 732 (Ky. App. 1986). Finally, he argued the ALJ erred in resolving
all the medical fee disputes in favor of the Cabinet. Newsome did not request additional findings
of fact concerning the issues he raised in the petition for consideration.
In the March 19, 2014, Order, the ALJ did not specifically
deny the petition for reconsideration but stated Newsome did not raise an issue
which had not been considered and determined previously. The ALJ concluded Newsome’s arguments were a
rehash of the same arguments and positions already considered by the ALJ and
therefore he believed the opinion and order fully and sufficiently set forth
the basis for each finding and his conclusions.
On appeal, Newsome challenges the decision on three grounds. First, Newsome asserts the ALJ’s denial of
additional benefits for a worsening of his back and left knee condition is not
supported by substantial evidence. Concerning
his claim of a worsened back condition, Newsome argues the opinions of Dr. Herr
and Mr. Dwight McMillion, the vocational expert, clearly refute the erroneous
opinions of Drs. Wolens, Densler, Nazar, and Travis. Newsome contends the opinions of Drs.
Densler, Nazar, and Travis are without merit.
Newsome also argues the ALJ erred by
not addressing his worsened left knee condition. As he did in his petition for
reconsideration, Newsome notes ALJ Coleman awarded benefits for the left knee
condition based on a 2% impairment rating and the opinions of Drs. Herr and
Sheridan establish his impairment rating has increased. Consequently, Newsome asserts the ALJ erred
by not awarding additional benefits for the worsening of his left knee.
Next, Newsome asserts the ALJ should
have concluded the Cabinet was liable for the negative consequences of the
surgery performed by Dr. Densler.
Newsome argues the evidence in this case unequivocally shows he suffered
additional damage as a result of Dr. Densler’s actions. Newsome again cites to Elizabethtown
Sportswear v. Stice, supra, arguing the Cabinet is liable for the
negative consequences of the surgery performed by Dr. Densler as the surgery
was reasonable, necessary, and work-related.
Finally, Newsome argues the ALJ’s
decision regarding the medical fee disputes was not based upon substantial
evidence. He cites to the Kentucky
Supreme Court decision in C & T of Hazard v. Stollings, Claim No.
2012-SC-00834-WC, rendered October 24, 2013, Designated Not To Be Published,
for the proposition the Cabinet had the burden of establishing the treatment in
question was not reasonable and necessary or causally related to the work
injury. Newsome’s argument is at best
scant. He asserts the mileage and
out-of-pocket expenses relative to the treatment for Commonwealth Quality
Healthcare are reasonable and necessary stating the statute does not provide a
limitation on the distance he travels to a medical provider. He also cites to his testimony he was unable
to obtain medical services in the area.
Therefore, he should not be punished for having to travel to receive the
appropriate treatment for his injuries.
Newsome maintains Dr. Herr’s opinions and his testimony which
establishes the surgery performed by Dr. Densler is reasonable and necessary
for the cure and relief of his work injuries.
Newsome provides no argument in support of his contention the ALJ’s decision
concerning the medical services provided by Pikeville Medical Center and
McDowell ARH is erroneous. Newsome requests
the opinion and order ruling on the petition for reconsideration should be
reversed and the claim remanded.
In a post-award medical fee dispute,
the burden of proof and risk of non-persuasion with respect to the reasonableness
and necessity of medical treatment falls on the employer. National Pizza Company vs. Curry, 802
S.W.2d 949 (
As fact-finder, the ALJ has the sole
authority to determine the quality, character and substance of the
evidence. Square D Company v. Tipton,
862 S.W.2d 308 (
However, in a reopening seeking additional income benefits,
Newsome had the burden of proving his condition had worsened sufficient to
warrant an award of income benefits. Griffith
v. Blair, 430 S.W. 2d 337 (Ky.
1968); Jude v. Cubbage, 251 S.W.2d 584 (Ky. 1952). Since Newsome
was unsuccessful in that burden, the question on appeal is whether the evidence
compels a different result.
The October 17, 2012, deposition of
Dr. Travis reveals he examined Newsome on August 17, 2011, and on August 24,
2012. Dr. Travis expressed the opinion the
surgery was unnecessary and inappropriate noting the February 17, 2010, MRI
showed no changes when compared to the November 26, 2007, MRI. He believed the MRI performed on February 27,
2010, without contrast, revealed nothing except a slight decrease in disc space
height at L4-5 which is to be anticipated.
Another MRI performed on August 2, 2011, showed very little change when
compared to the lumbar MRIs performed in February 2010 and November 2007. He concluded the findings on the MRIs did not
relate to the injuries in 2005 and 2006.
Therefore, he believed the surgery was not reasonable, necessary, or
appropriate.
Dr. Travis did not believe Newsome
was a candidate for fusion surgery, especially at two levels. He noted there was no nerve root compromise,
fracture, instability, herniation or subluxation. Even assuming the surgery was reasonable and
necessary, Dr. Travis believed it would not be related to the work injuries of
2005 and 2006. He explained the surgery
was performed due to degenerative disc disease and one does not “get
degenerative changes from a lumbar strain and sprain.” Similarly, there was no objective evidence of
a worsening of condition which would warrant surgery. He concluded there was no worsening of
Newsome’s condition since entry of ALJ Coleman’s 2008 opinion. Consequently, prior to the surgery there
would be no increase in impairment rating.
However, pursuant to the 5th Edition of the
American Medical Association, Guides to the Evaluation of Permanent
Impairment (“AMA Guides”), due solely to the surgery, Newsome now
has a 24% impairment rating.
Dr. Travis felt Newsome had serious
depression, anxiety problems, and an opioid addiction which affected his
ability to respond to simple strain and sprain.
He noted the urine screens in 2011 and 2012 identified unanticipated
drugs in his system. In addition, he believed
the treatment received at the pain clinic was not reasonable or necessary. With respect to the condition of Newsome’s
left knee, he noted the knee was fully extended and flexed and there was no
swelling or fusion. There was no
discomfort or loss of motion. Thus, he
would assign no impairment rating to Newsome’s left knee condition. He noted no other physician agreed with Dr.
Densler’s interpretation of the pre-surgery MRIs.
In a report dated October 4, 2011, Dr. Travis noted Newsome
had degenerative changes at L4-5 and L5-S1, which were not related to the 2005
injury. He opined Newsome exhibited “natural
aging processes” in the lumbar spine with no instability and no indication
whatsoever for lumbar fusion. The three
MRIs he re-reviewed revealed no instability.
He believed the only change that occurred was in the hyper-intensity
zone of the L4-5 annulus which had resolved by August 2, 2011. Further, the degenerative annular bulge had
not significantly changed. Consequently,
there was no instability and no indication for lumbar fusion particularly in a
man who shows only age related mild degenerative changes in the lumbar
spine.
In a supplement dated March 6, 2012, Dr. Travis stated he
was surprised to learn surgery had occurred.
He had no idea why Dr. Densler subjected Newsome to a lumbar fusion at
L4-5 and L5-S1. Dr. Travis stated the
MRIs he interpreted did not indicate any need for surgical procedure especially
a two level fusion. He explained why he
believed the fusion was not necessary.
In a subsequent report dated August 24, 2012, Dr. Travis
stated the surgery performed was not reasonable, necessary, or work-related to
the injury of 2005 or 2006. Dr. Travis
referenced his previous reports and again concluded there was no indication for
lumbar fusion. He reiterated that prior
to the surgery, Newsome had no objective evidence of a worsening of condition
since ALJ Coleman’s 2008 decision. Thus,
Newsome would not have an increased impairment rating prior to the surgery. The surgery performed by Dr. Densler is the sole
reason for the increased impairment rating.
Further, he noted Newsome was not a candidate for continuing opioids and
should have been treated with conditioning, work hardening, and weaned from
opioids. But for the surgery, Dr. Travis
believed Newsome would have been able to return to work and continue to work
for the indefinite future.
Dr. Travis concluded Newsome did not have an impairment
rating for the knee simply because he had a meniscal repair. Since Newsome had full range of flexion and
extension, Dr. Travis would not assess an impairment rating for the knee.
In a May 17, 2011, letter, with respect to the proposed surgery,
Dr. Wolens stated that after reviewing the February 17, 2010, lumbar MRI, he
concurred with the radiologist’s interpretation of disc degeneration at L4-5
and at L5-S1 with slight narrowing at L4-5, with good preservation of height at
L5-S1. He noted at the L4-5 and L5-S1 levels
there continued to be visibility of the nuclear cleft although there was
overall darkening of the discs compared with the above or upper level. There was also a slight narrowing at
L4-5. There was also no disc space
narrowing. There were no modic changes
or spondylolisthesis. As noted by the
radiologist, he believed these findings were also stable, when compared to the November
2007 lumbar MRI. He concluded by stating:
I respectfully recommend against
performance of the lumbar fusion, given the minor degenerative changes at L4-5
and L5-S1 level in the absence of frank instability or modic changes and
relative stability to an MRI conducted approximately two and half years
previously.
Dr. Mark Swofford, identified by Dr. Herr and Dr. Travis as
a urologist, stated in a December 10, 2012, letter that Newsome’s physical
examination and symptoms following the back surgery “do not go along with an
injury from surgery.”[4] They are consistent with low testosterone which
is not related to the previous back injuries.
Dr. Richard Sheridan’s October 31, 2012, report was
introduced relative to Newsome’s left knee condition. However, Dr. Sheridan also provided a report
dated November 20, 2012, in which he stated he had previously diagnosed
injuries in 2005 and 2006 as lumbar strains and that is still his opinion. Dr. Sheridan stated he reviewed Dr. Densler’s
reports of May 31, 2012, and June 28, 2012, as well as the MRI report of the
lumbar spine dated June 28, 2012. Dr.
Sheridan noted Dr. Densler’s records indicate Newsome had some recent pain
complaints in his low back secondary to jumping out of a car in May. He believed Newsome’s presentation in May
2012 was compounded by his previous low back injuries and the recent injury
from jumping out of a car. Dr. Sheridan
believed the lumbar fusion was performed due to degenerative changes and was
unrelated to the 2005 and 2006 work injuries.
Newsome introduced a questionnaire completed by Dr. Gregory
Nazar on June 28, 2012. Dr. Nazar
indicated he had evaluated Newsome on that same date due to the work injuries
he previously sustained while working for the Cabinet. He diagnosed low back pain which relates to
the injuries sustained on those dates.
Dr. Nazar assessed a 7% impairment rating. Dr. Nazar specifically stated he did not
believe Newsome required surgical intervention and was uncomfortable with the
amount of medication he is currently taking.
Newsome introduced the Form 107 completed by Dr. Densler
dated December 4, 2012. Dr. Densler
indicated the history of Newsome’s injury and complaints is unknown. He also stated the degree of injury is
unknown. He noted Newsome had severe
lumbar pain on flexion. He also stated whether
Newsome’s injury is the cause of his complaints is unknown. Similarly, when asked to explain how the work-related
injury caused the harmful change in the human organism, Dr. Densler wrote
unknown. With respect to the impairment
rating, Dr. Densler indicated unknown.
The opinions of Drs.
Travis, Wolens, Swafford, Sheridan, and Nazar, relied upon by the ALJ, constitute
substantial evidence supporting the ALJ’s determination the surgery was not work-related. In addition, the statements of Dr. Densler
specifically declining to provide an opinion regarding whether the surgery was
due to the effects of the work injury support the ALJ’s decision the surgery
was not reasonable, necessary, and causally related to the previous work
injuries.[5] Similarly, the opinions of Drs. Travis and
Wolens establish the surgery was not reasonable and necessary treatment of
Newsome’s 2005 and 2006 low back injuries.
The above-cited evidence also
constitutes substantial evidence supporting the ALJ’s decision Newsome did not
sustain a worsening of his work-related condition and was not entitled to an award
of increased income benefits due to a worsened condition resulting from the
surgery. Consequently, the evidence does
not compel a different result. Significantly,
Dr. Travis testified Newsome’s increased impairment and worsened condition were
due to the surgery performed by Dr. Densler which was unnecessary and unrelated
to the work injuries. He specifically
stated there was no objective evidence of a worsened condition since ALJ
Coleman’s decision. Thus, the medical evidence
amply supports denial of Newsome’s claim for additional income benefits due to
a worsened low back condition and/or an increased impairment rating.
Newsome’s argument the Cabinet should have
been adjudged liable for the negative consequences of the surgery performed by
Dr. Densler is flawed. In this case, all
doctors except Drs. Herr and Densler stated the surgery was unnecessary. As the ALJ found the surgery was not reasonable
and necessary treatment of and causally related to the work injuries, the
Cabinet was not responsible for the consequences of the surgery. In Elizabethtown Sportswear v. Stice,
720 S.W.2d 732, 734 (Ky. App. 1986), in discussing KRS 342.020(3) the Court of
Appeals stated:
This statute has been interpreted to mean that a civil action
cannot be brought against the employer for damages caused by a physician's
malpractice or improper treatment, not that a claim for worker's compensation
benefits cannot be brought by the employee to recover for additional disability
resulting from treatment which aggravates a work-related injury. [citation
omitted]
. . .
She had a right to submit herself to what is usually
a routine diagnostic procedure recommended by her physician. If she had not
done so, Appellee could claim that compensation should be denied for her
failure to follow competent medical advice. [citations omitted] [But at least
she would still be alive.]
In Elizabethtown
Sportswear v. Stice, supra, there was no dispute the surgery was
reasonable and necessary treatment of the work injury. Thus, the adverse consequence of the surgery
was compensable. Here, the ALJ
determined the surgery was not reasonable and necessary treatment of and
causally related to the low back injuries.
Thus, the Cabinet was not responsible for the consequence of a failed
surgery which was not reasonable, necessary, and unrelated to the 2005 and 2006
work injuries. Elizabethtown
Sportswear v. Stice, supra, is inapplicable.
That said, in the
opinion and order and the order ruling on the petition for reconsideration, the
ALJ failed to address Newsome’s claim for additional income benefits due to a
worsened left knee condition. On
reopening, Dr. Herr assessed a 7% impairment rating and Dr. Sheridan assessed a
4% impairment rating. However, in doing
so, Dr. Sheridan stated as follows: “The Plaintiff’s diagnosis as it relates to
the left knee incident is tears of the medial and lateral meniscal.” Dr. Sheridan stated this merited a 4% whole
person impairment rating pursuant to the 5th Edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment
(“AMA Guides”), none of which is attributable to a pre-existing active
condition. Notably, Dr. Sheridan’s
opinions relate to a left knee injury and tears to the medial and lateral
meniscal. There is no statement by Dr.
Sheridan as to what caused the medial and lateral meniscal tears. Thus, the report of Dr. Sheridan does not per se establish an increase in
impairment due to a worsened condition which would mandate a finding the
increase in impairment rating is due to a worsened condition as opposed to a
specific injury occurring after rendition of ALJ’s Coleman’s opinion. Conversely, Dr. Travis stated he would assess
no impairment for the knee as Newsome had full range of extension/flexion
without evidence of a fusion or other problems.
Thus, this matter must be remanded to the ALJ for a determination as to
whether there has been a worsening of Newsome’s left knee condition caused by
the 2006 work injury sufficient to justify an award of increased income
benefits.
Finally, we find no
merit in Newsome’s argument the ALJ’s decision concerning the medical fee
disputes is not supported by substantial evidence. Again, as the Cabinet had the burden of establishing
the contested medical treatment was not reasonable, necessary, and causally
related to the work injuries, we conclude substantial evidence supports the
ALJ’s determination regarding the medical treatment in question and Newsome’s
entitlement to reimbursement for mileage and out-of-pocket expenses.
Dr. Travis’ opinions
expressed in his deposition and various reports constitute substantial evidence
in support of the ALJ’s decision relative to the emergency room visits to
Pikeville Medical Center. In Dr. Travis’
August 17, 2011, report, he indicates when Newsome appeared at the emergency
room on January 14, 2010, he presented with a history of fever and the same
chronic low back pain. At that time, his
chest x-ray revealed pneumonia. Newsome
was being followed for back pain on a regular basis and there was no indication
for an emergency room visit. His fever
was secondary to pneumonia; thus, the emergency room visit had no relationship
to his low back problems.
With respect to the February 17,
2010, visit, Dr. Travis noted Newsome had been under the established care of a
physician for which he had been prescribed multiple drugs. The MRI on that same date revealed no change
from the previous MRI as it showed mild degenerative bulges at L4-5 and L5-S1
when compared with the November 26, 2007, MRI.
There was no history of bowel or bladder dysfunction and no evidence of cauda equina syndrome. Therefore, he concluded nothing would appear
to be of an emergent nature that would require a visit to the emergency room
since Newsome was being maintained on significant opioids by a physician. Thus, he opined there was no indication
anything had changed to require an emergency room visit.
Concerning the
February 27, 2010, visit to Pikeville Medical Center, Dr. Travis noted there
was no evidence of bowel or bladder dysfunction. Although Newsome claimed to have a fever of
105.2 degrees, his temperature at the emergency room was 100.3 degrees. He stated the emergency room physician had no
way of knowing whether an accurate temperature was taken at home. Although it was appropriate to obtain an MRI
with a history of a 105 degree temperature to rule out discitis and epidural
abscess, he noted the MRI was normal.
Further, even if discitis or an epidural abscess had been found, the MRI
had no relationship to the 2005 and 2006 injuries. Therefore, the visit was not reasonable,
necessary, and related to the previous lumbar sprain and strain.
In a January 30,
2012, letter, Dr. Travis again confirmed that after reviewing extensive medical
records, it was his opinion the three emergency room visits in January and
February were neither reasonable nor necessary.
Newsome had no objective findings and upon review of the MRIs, Dr.
Travis found no evidence of neural foramen or nerve root compromise on the left
which one could incriminate as the cause of either low back or left lower
extremity pain. He believed Newsome
exhibited significant symptom magnification.
Dr. Travis also addressed the emergency room visit to McDowell ARH on
February 21, 2011. He indicated although
the records from that specific emergency room visit were not sent, he assumed
they were for the same complaints of low back pain for which Newsome had made previous
emergency room visits which were unnecessary.
He concluded there was no indication for further emergency room visits
as it relates to the low back injuries of 2005 and 2006.
In his February 26,
2010, letter, Dr. Wolens stated on January 14, 2010, Newsome presented with a
several-day history of fever and low back pain.
However, the examination revealed the presence of bibasilar rales.
Newsome was given parenteral opioids for low back pain and parenteral
antibiotics for his pneumonia. Dr.
Wolens did not consider the emergency room evaluation to be the result of low
back pain but instead due to pneumonia.
He stated individuals with febrile infectious disease develop
musculoskeletal pain which was very common in individuals who have
influenza. For individuals who have a
pre-existing musculoskeletal complaint, a febrile infectious disease will
worsen that complaint. However,
worsening of a mechanical low back pain would not require emergency department
management.
In a March 4, 2010, letter,
Dr. Wolens addressed Newsome’s February 17, 2010, visit to the Pikeville
Medical Center. Dr. Wolens stated he did
not consider the emergency room the appropriate point of contact for chronic
lumbar pain. Newsome was already being
treated with potent opioids and under established physician care. Thus, there was no qualitative change in
Newsome’s condition to warrant emergency management.
In Dr. Wolen’s March
26, 2010, letter, he discussed Newsome’s visit to the emergency room on
February 27, 2010, and the February 17, 2010, MRI. After discussing the contents of the February
27, 2010, records, Dr. Wolens stated the emergency department evaluation was
not necessarily for the treatment of Newsome’s chronic low back pain as the
emergency room was not an appropriate point of care for his condition. Furthermore, it was not clear whether the low
back pain is truly what brought Newsome to the emergency department. He noted the history given by Newsome was
that he experienced fever at home. Dr.
Wolens also noted it was reported that Newsome was experiencing jerking motions
although it was not reported where the motions were located. Even if the motions were in the lower
extremity, they would have no association with a lumbar strain as Newsome has
never had any evidence of neurological pathology. Further, the lumbar radiculopathy would not
manifest as recurring episodes of jerking.
Regarding the February 17, 2010, MRI
in question, Dr. Wolens indicated the MRI was indicated in order to deal with
potential spinal infection, but it was inappropriate to consider Newsome to
have a potential spinal infection.
However, the spinal infection would have no relationship to the lumbar
strain of 2006. Therefore, although
clinically appropriate, the MRI was not related to the event of February 13,
2006. The ALJ relied upon the opinions
of Drs. Wolens and Travis in resolving the medical fee disputes concerning the four
emergency room visits and the February 17, 2010, MRI. Since their opinions constitute substantial
evidence, the ALJ’s decision regarding these medical disputes must be affirmed.
Finally, the ALJ’s
denial of reimbursement for mileage and out-of-pocket expenses incurred for
nine visits to the Commonwealth Quality Healthcare is supported by substantial
evidence. In his deposition, Dr. Travis
stated the treatment Newsome received at the pain clinic was not reasonable and
necessary. Dr. Travis expressed concern
over the extensive medication Newsome was receiving. As noted by the ALJ, his opinion is
reinforced by Newsome’s physician, Dr. Nazar who indicated he was uncomfortable
with the amount of medication Newsome was currently taking. Consequently, we believe the testimony of Dr.
Travis and the opinions expressed in his reports regarding the need for further
treatment as well as Dr. Nazar’s statement constitute substantial evidence
supporting the ALJ’s decision that the treatment at Commonwealth Quality
Healthcare was not reasonable and necessary.
Therefore, Newsome is not entitled to mileage and his out-of-pocket
expenses relating to the pain management treatment received from Commonwealth
Quality Healthcare.
Accordingly, those
portions of the February 10, 2014, Opinion and Order and the March 19, 2014,
Order ruling on the petition for reconsideration finding the surgery performed
by Dr. Densler is not reasonable, necessary, or causally related to the 2005
and 2006 work injury are AFFIRMED. Similarly, the ALJ’s determination Newsome
did not have an increase in occupational disability due to a worsening low back
condition and that the Cabinet is not responsible for the adverse effects of
the surgery performed by Dr. Densler and any additional impairment rating
attributable to that surgery is also AFFIRMED. The ALJ’s determination the three visits to
the emergency room at Pikeville Medical Center, the one visit to the emergency
room at McDowell ARH, and the MRI of February 17, 2010, performed at Pikeville
Medical Center are not reasonable and necessary treatment of the 2005 and 2006
work injury is AFFIRMED. However, those portions of the February 10,
2014, Opinion and Order and the March 19, 2014, Order ruling on the petition
for reconsideration denying Newsome’s claim for additional benefits due to a
worsened left knee condition are VACATED. This claim is REMANDED to the ALJ as designated by the Chief Administrative Law
Judge for entry of an amended opinion determining whether Newsome’s work-related
left knee condition has worsened and whether Newsome is entitled to increased permanent
income benefits.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON JOHN EARL HUNT
P O BOX 960
ALLEN KY 41601
COUNSEL
FOR RESPONDENT:
HON JAMES G WOMACK
155 E MAIN ST STE 260
LEXINGTON KY 40507
RESPONDENTS:
PIKEVILLE MEDICAL CENTER
911 BYPASS ROAD
PIKEVILLE KY 41501
MCDOWELL ARH
9879 KY RTE 122
MCDOWELL KY 41647
DR DUANE DENSLER
PIKEVILLE MEDICAL CENTER
911 BYPASS ROAD
PIKEVILLE KY 41501
GREATER MEDICAL ADVANCE INC
8746 OHIO RIVER RD
WHEELERSBURG OH 45694
CHIEF
ADMINISTRATIVE LAW JUDGE:
HON J LANDON OVERFIELD
657 CHAMBERLIN AVE
FRANKFORT KY 40601
[1]
All parties agreed this medical dispute
became moot since Greater Medical Advance, Inc. closed. Therefore, the facts
relating to this dispute will not be discussed further.
[2] It appears the correct name of the facility is Commonwealth Quality Healthcare.
[3]
The Form 114 – Request for
Reimbursement submitted by Newsome lists nine doctor visits and the
corresponding mileage for each visit which span a period from October 19, 2011,
to May 8, 2012.
[4]Dr. Swofford’s reports do not indicate he has
a specific medical specialty.
[5] Since the ALJ stated on page 25 of the opinion and order the medical expenses challenged in all the medical fee disputes also have been found to be unreasonable and/or necessary, we deem this to include the medical fee dispute pertaining to the surgery recommended and performed by Dr. Densler.
