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Commonwealth
of Kentucky
Workers’
Compensation Board
OPINION
ENTERED: May 29, 2015
CLAIM NO. 201176738
ANYTHING GROES PETITIONER
VS. APPEAL FROM HON. CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE
CHRIS MIXON,
DR. MICHAEL CRONEN,
DR. SI VAN NGUYEN/PROOVE MEDICAL
LABORATORIES,
HON. CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Anything Groes appeals from the
December 1, 2014 Opinion and Order, and the January 20, 2015 Order on
Reconsideration of Hon. Chris Davis, Administrative Law Judge (“ALJ”) finding
proposed treatment for Chris Mixon (“Mixon”) compensable. Anything Groes appeals, arguing the ALJ
abused his discretion in rejecting the uncontradicted opinion of its
physician. We disagree and affirm.
Mixon injured his low
back on August 15, 2011. He filed a
claim for benefits which was settled on the basis of a 6.5% impairment
rating. The agreement was approved on
August 5, 2013. Mixon retained his right
to future medical benefits.
On June 18, 2014,
Anything Groes filed a Form 112 medical dispute to contest treatment
recommended by Dr. Michael Cronen. Dr.
Cronen requested a compound cream to alleviate Mixon’s low back pain. The ALJ ultimately determined the compound
cream is reasonable and necessary for the treatment of Mixon’s injury, and that
conclusion has not been appealed.
While the medical
dispute was pending, Anything Groes filed a subsequent Form 112 to contest a
genetic predisposition test requested by Dr. Cronen. With the Form 112, Anything Groes submitted
the utilization review report of Dr. Albert Olash. Dr. Olash noted Mixon has been on narcotic
pain medication for well over a year.
The genetic test “can improve a physician’s ability to predict which
patients are at increased risk for addiction and abuse of narcotic
medications.” Dr. Olash acknowledged
“why a physician would like to run this genetic test”, because it increases the
provider’s ability to predict addiction or abuse by 24%. However, noting the test cost of $3503.14,
Dr. Olash concluded “the cost of the test completely destroys any clinical
practical use.” He also explained the
information gleaned from the test would not change the way a physician
practices medicine, as the same surveillance and counseling would be provided
even if the patient tested negative for a predisposition.
Mixon filed no evidence
concerning the genetic predisposition test.
The ALJ entered an
Order on December 1, 2014, finding the genetic predisposition testing
compensable. He explained:
As
for the genetic test the only issue is reasonableness and necessity, meaning
that the burden lies with the Movant.
The sole basis of their argument is not[sic],
by the very terms of Dr. Olash’s report, that the test is not reasonable and
necessary but that it is over-priced.
There is not (sic) provision in the Act to find something unreasonable
or unnecessary due to price. It shall be
found to be reasonable and necessary and subject to the appropriate fee
schedule.
In a petition for
reconsideration, Anything Groes argued Dr. Olash objected to the genetic
testing not simply on the basis of cost, but also explained its limited
clinical value. The ALJ denied the
petition, adding he “found the helpfulness of the genetic testing, even at 24%,
to make it reasonable and necessary.”
Anything Groes now appeals, claiming the ALJ’s finding is clearly
erroneous and an abuse of discretion.
The basis of Anything
Groes’ argument is that Mixon did not file any evidence supporting the
reasonableness or necessity of the genetic predisposition testing, and
therefore the ALJ was required to accept Dr. Olash’s opinion. However, the employer bears the burden of proving
the proposed treatment is unreasonable or unnecessary. National Pizza Co. v.
Curry, 802 S.W.2d 949 (Ky. App. 1991). Mixon was not required to present proof of
the treatment’s reasonableness or necessity.
Moreover, the ALJ may reject uncontradicted evidence if there is a
reasonable basis for doing so. Here, the
ALJ articulated the basis for his rejection of Dr. Olash’s opinion. As to Dr. Olash’s discomfort with the cost of
the testing, the ALJ correctly noted this is not a recognized basis to reject
treatment. “An
employer may not rely on [KRS 342.020(1)] simply because he is dissatisfied
with the worker's choice, for example, or because the course of treatment is
lengthy, costly, or will not provide a complete cure.” Square
D Co. v. Tipton, 862 S.W.2d 308, 210 (Ky. 1993). The ALJ also determined the 24% benefit is
sufficient to justify the treatment.
This finding is supported by Dr. Olash’s acknowledgement that the
genetic test holds “some clinical benefit” and he can “definitely understand why
a physician would like to run this test.”
The ALJ enjoys the discretion to 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. Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000). As such, the ALJ was entitled to reject Dr.
Olash’s opinion and stated a reasonable basis for so doing. Because substantial evidence supports the
ALJ’s decision, we are without authority to reverse the award.
For the foregoing
reasons, the December 1, 2014 Opinion and Order, and the January 20, 2015 Order
on Reconsideration of Hon. Chris Davis, Administrative Law Judge, are hereby AFFIRMED.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON STEVEN D GOODRUM
771 CORPORATE DRIVE SUITE
101
LEXINGTON, KY 40503
HON KRISTIN M DOWNS
771 CORPORATE DRIVE SUITE
101
LEXINGTON, KY 40503
COUNSEL
FOR RESPONDENT CHRIS MIXON:
HON WAYNE C DAUB
600 W MAIN ST STE 300
LOUISVILLE, KY 40202
RESPONDENTS:
DR MICHAEL CRONEN
252 WHITTINGTON PARKWAY
LOUISVILLE, KY 40222
SI VAN NGUYEN MD/PROOVE MEDICAL
LABORATORIES
6 THOMAS STE 100
IRVINE, CA 92618
ADMINISTRATIVE
LAW JUDGE:
HON. CHRIS DAVIS
PREVENTION PARK
657 CHAMBERLIN AVE
FRANKFORT, KY 40601
