RENDERED:  JUNE 5, 2015; 10:00 A.M.

NOT TO BE PUBLISHED

 

Commonwealth of Kentucky

Court of Appeals

NO. 2014-CA-001791-WC

 

JAMES HALCOMB AND

JOHNNIE L. TURNER                                                             APPELLANTS

 

 

 

                           PETITION FOR REVIEW OF A DECISION

v.                   OF THE WORKERS’ COMPENSATION BOARD

                                        ACTION NO. WC-03-83401

 

 

 

AMERICAN MINING COMPANY;

DR. JOSE ECHEVERRIA; HON. JOHN

B. COLEMAN, ADMINISTRATIVE LAW

JUDGE; AND WORKERS’ COMPENSATION
BOARD                                                                                        APPELLEES

 

 

 

OPINION

AFFIRMING

 

** ** ** ** **

 

BEFORE:  clayton, kramer, and nickell, JUDGES.

KRAMER, JUDGE:  James Halcomb seeks review of a June 17, 2014 decision from an Administrative Law Judge (ALJ) and an affirming opinion of the Workers’ Compensation Board (Board) determining that his former employer, American Mining, is no longer responsible for the cost of his prescription narcotic medication.  Finding no error, we affirm.

                   By way of background, American Mining entered into a Form 110-I approved settlement with Halcomb after he filed a claim alleging that he had sustained a work-related injury to his back, left hip and muscles on May 21, 2003, when a coal truck he was operating rolled over on its side.  The Form 110-I reflects Halcomb sustained a transverse process fracture at L2-3, which ultimately resolved, and experienced symptoms at the L5-S1 level requiring a discectomy.  Halcomb did not waive his right to future medical expenses.

                   On January 10, 2014, American Mining filed a motion to reopen; a Form 112 medical fee dispute; and a motion to join Halcomb’s treating physician, Dr. Jose Echeverria, as a party.  In its medical fee dispute, American Mining noted Halcomb had been continuing treatment with Dr. Echeverria following the settlement, and his treatment included regular prescriptions for the narcotic pain medication Lortab.  American Mining noted that it had requested Dr. Echeverria submit Halcomb to random drug screens, provide the date of the most recent KASPER review, and undertake random pill count monitoring.  American Mining further noted that Dr. Echeverria had only complied with one of its requests; had submitted Halcomb to drug screens on October 11, 2012, April 9, 2013, and October 9, 2013; that each of Halcomb’s drug screens had been positive for tetrahydrocannabinol (THC), the active component of marijuana; but, that without any comment regarding the presence of THC in Halcomb’s drug screens, Dr. Echeverria had nevertheless continued to refill Halcomb’s Lortab prescriptions.  Based upon two utilization review reports (one of which was a December 20, 2013 report from Dr. William Nemeth, stating that continued pain management and prescription of narcotic medicine is medically unnecessary and inappropriate for someone actively self-medicating with THC), American Mining requested Dr. Echeverria be given four weeks to wean Halcomb from Lortab.  American Mining also requested to be absolved from further liability for payment of any narcotic medication thereafter.

                   The ALJ sustained American Mining’s motion to reopen and joined Dr. Echeverria as a party.  Thereafter, Halcomb filed additional drug screening toxicology reports.  Both the April 9, 2014 and May 14, 2014 toxicology reports noted Halcomb had tested negative for THC.  Halcomb also submitted a May 9, 2014 affidavit from Dr. Echeverria; in the affidavit, Dr. Echeverria stated he was aware of the presence of THC in Halcomb’s system on prior drug screenings, but that there were numerous ways one can test positive for THC without intentionally consuming it.  Dr. Echeverria indicated he advised Halcomb to refrain from being around people who use THC in his presence.  Dr. Echeverria also opined “the regimen of medication that I have prescribed is appropriate and should be continued to give [Halcomb] some relief from his work related injuries.”

                   In response, American Mining submitted a May 9, 2014 supplemental report from Dr. Nemeth.  Dr. Nemeth explained the length of time THC remains in a person’s system depends upon the amount ingested or inhaled, but small amounts can result in a positive THC screen for six weeks or more following significant exposure.  In Halcomb’s case, Dr. Nemeth opined the fact that there had been at least three positive drug tests taken from 2012 through 2013 at least three months apart from one another was, within medical probability, indicative of active use of THC as opposed to secondary exposure.  Dr. Nemeth further stated that Halcomb should not continue using narcotic pain medication even if THC was eventually no longer present in his system.  Dr. Nemeth wrote that other factors militated against Halcomb’s continued use of narcotics to treat his 2003 injury.  In particular, Dr. Nemeth noted that Halcomb’s use of narcotics could be tapered off and permanently discontinued after four weeks because the narcotic medication Halcomb had been prescribed was already “minimal.”  He also wrote in his supplemental report of May 9, 2014:

I would not treat Mr. Halcomb with opiates for his chronic pain syndrome.  Even if Mr. Halcomb stops using THC there are other psychiatric diagnoses that are being medicated in this particular claim and opiates are not indicated for chronic spine pain per ODG[[1]] Treatment In Workers’ Compensation as an evidence based treatment.  With other risk factors clearly expressed in this claim based upon my prior reviews, it would not be prudent to continue to treat Mr. Halcomb with opiate medications.

 

                   In light of Dr. Nemeth’s reports and Halcomb’s three drug screens that were positive for THC, the ALJ determined that narcotic medication was not reasonable or necessary for the treatment or relief of Halcomb’s 2003 injury.  Halcomb filed an administrative appeal to the Board, which affirmed.  He now appeals to this Court.

                   The standard for appellate review of a Board decision “is limited to correction of the ALJ when the ALJ has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice.”  Bowerman v. Black Equip. Co., 297 S.W.3d 858, 866 (Ky. App. 2009) (citing W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687–88 (Ky.1992)).  The ALJ “has the sole authority to determine the quality, character, and substance of the evidence.”  Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993) (citation omitted).

                   The Kentucky Supreme Court explained the standards required by an ALJ in determining the compensability of medical treatment, as follows:

KRS 342.020(1) allows a worker to choose her own physician and to have whatever medical treatment is reasonably necessary for the cure and/or relief of her injury. The burden of proving that a treatment is unreasonable is on the employer. . . .  KRS 342.020(3) indicates that the legislature did not intend to require an employer to pay for medical expenses which result from treatment that does not provide “reasonable benefit” to the injured worker. . . .  [T]his section relieves an employer of the obligation to pay for treatments or procedures that, regardless of the competence of the treating physician, are shown to be unproductive or outside the type of treatment generally accepted by the medical profession as reasonable in the injured worker's particular case.

 

Id. at 309–10 (internal citation omitted).

                   On appeal before this Court, Halcomb does not contest the validity of Dr. Nemeth’s opinion that it is not medically reasonable or appropriate to continue prescribing narcotic medication to a person who is actively using marijuana.  Instead, Halcomb’s first argument on appeal is that no evidence of record demonstrates that he actively used THC.  This argument has no merit, however, in light of Dr. Nemeth’s above-described interpretation of and opinion regarding Halcomb’s October 11, 2012, April 9, 2013, and October 9, 2013 drug screens.  We agree with the ALJ and Board that these constituted substantial evidence to the contrary.

                   Halcomb’s second argument is that because his two latest urine tests of April and May 2014 were negative for THC, and because Dr. Echeverria opined thereafter by affidavit that “the regimen of medication that [he] prescribed [Halcomb] is appropriate and should be continued,” compelling evidence therefore supports he no longer has THC in his system and that narcotic medication is, thus, once again reasonable and necessary for the treatment and relief of his 2003 work injury.

                   We disagree.  Halcomb’s argument ignores the full extent of Dr. Nemeth’s opinions, which the ALJ ultimately relied upon instead of the opinion offered by Dr. Echeverria.  In his December 20, 2013 report, Dr. Nemeth stated that the presence of THC in Halcomb’s system over the course of three failed drug screens, each three months apart, warranted immediately discontinuing Halcomb’s use of narcotic pain medication because it demonstrated Halcomb was being noncompliant with the rules applicable to long-term prescriptions for controlled substances.[2]  But, he further opined in his supplemental report of May 9, 2014, for the additional reasons discussed above, that Halcomb should not resume using narcotic pain medication even if THC was eventually no longer present in his system.  In its separate review of this matter, the Board cited Dr. Nemeth’s report and his above-stated opinions as substantial evidence supporting the ALJ’s decision that, irrespective of Halcomb’s two recent drug screenings of April and May 2014, continued use of narcotic medication would not be reasonable or necessary for the relief and treatment of Halcomb’s 2003 injury.  We have no reason to disagree with the Board’s assessment of the evidence, nor does Halcomb point to any evidence that would compel a contrary result. 

                   We therefore AFFIRM.

                   all concur.

 

BRIEF FOR APPELLANT:   Johnnie L. Turner Harlan, Kentucky

BRIEF FOR APPELLEE:   Scott M. Brown Lexington, Kentucky