Workers’
Compensation Board
OPINION
ENTERED: July 17, 2015
CLAIM NO. 199407445
J.I.L. MINING COMPANY, INC. PETITIONER
VS. APPEAL FROM HON. JANE
RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE
TERRY WILLIAMSON,
DR. SAI GUTTI,
PAIN MANAGEMENT CENTER, and
HON. JANE RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. J.I.L.
Mining Company, Inc. (“J.I.L.”), appeals from the Opinion and Order rendered
March 4, 2015 by Hon. Jane Rice Williams, Administrative Law Judge (“ALJ”)
resolving a medical fee dispute in favor of Terry Williamson (“Williamson”), by
finding the caudal epidural steroid injection recommended by Dr. Sai Gutti
compensable. J.I.L. also seeks review of
the April 2, 2015 order denying its petition for reconsideration.
Williamson was working
as a roof bolter for J.I.L. on January 7, 1992 when he injured his back, and
sustained a crush injury to his right hand in a rock fall. In an Opinion, Order and Award rendered
January 27, 1995, Hon. Lloyd Edens, Administrative Law Judge, found Williamson
was entitled to temporary total disability benefits and permanent partial
disability benefits based on a combined 65% impairment rating, attributing 40%
to the back injury and 25% to the right hand injury.
Williamson subsequently filed
a motion to reopen for a worsening of his condition. In an Opinion and Award rendered December 21,
2000, Hon. John B. Coleman, Administrative Law Judge (“ALJ Coleman”), found
Williamson’s condition had worsened, and awarded permanent total disability and
medical benefits.
In an Opinion and Order
rendered May 21, 2010, Hon. Lawrence F. Smith, Administrative Law Judge,
resolved a medical fee dispute filed by J.I.L. in favor of Williamson by
finding all treatment provided by Drs. Robert Windsor and Bill Webb reasonable,
necessary and related to the 1992 work injury, with the exception of a
prescription for Xanax.
In an Opinion and Order
rendered May 23, 2011, Hon. Grant S. Roark, Administrative Law Judge, resolved
a medical fee dispute filed by J.I.L. in favor of Williamson finding a new
adjustable mattress prescribed by Dr. Webb was compensable.
On October 29, 2014,
J.I.L. filed a motion to reopen and medical fee dispute to challenge a proposed
caudal epidural steroid injection by Dr. Gutti based upon the opinion of Dr.
Paul Loubser. In support of its motion,
J.I.L. filed five exhibits consisting of the original January 27, 1995 opinion,
the December 21, 2000 opinion, the May 21, 2010 opinion, the May 23, 2011 and
the September 29, 2014 Utilization Review Notice of Denial and Physician
Advisor Report by Dr. Paul Loubser.
In the September 29,
2014 report, Dr. Loubser noted Williamson had been diagnosed with intractable
low back pain, lower extremity radiculitis, lumbar degenerative disc disease
with central protrusion at L4-5 and status post hemilaminectomy at L4 with
bulging osteophyte formation at L5-S1 level, neuropathy, and status-post back
surgery as a result of the January 7, 1992 work injury. Dr. Loubser provided the Kentucky Guidelines
for epidural steroid injections, which state it is an option for short-term
relief of radicular pain after failure of conservative treatment or as a means
to avoid surgery. The Guidelines then
list eleven criteria for the use of epidural steroid injections. The seventh criteria states, “If after the
initial block/blocks are given . . . and found to produce pain relief of at
least 50-70% pain relief for at least 6-8 weeks, additional blocks may be
supported.” In recommending
non-certification of the caudal epidural steroid injection requested by Dr.
Gutti, Dr. Loubser stated as follows:
Based
on the clinical information provided, the request for caudal epidural injection
is not recommended as medically necessary.
The patient underwent prior caudal epidural injection in January 2013. Follow up note from March 2013 states that
the injection helped for greater than three months; however, the date of the
note is less than 2 months after the injection was performed. The submitted records fail to document at
least 50% pain relief for at least 6 weeks as required by current evidence
based guidelines. There is no indication
that the patient has undergone any recent active treatment. Peer discussion was
not successful. Recommend non-certification.
A letter was
subsequently sent to Dr. Gutti alerting him the request for caudal epidural
injection had been denied due to his failure to submit adequate supporting
medical documentation for the proposed injection. Dr. Gutti was notified he had fourteen days
to make a request for reconsideration, which would necessarily include
providing the appropriate medical documentation. Dr. Gutti apparently made no such request, nor
did he supply additional medical documentation.
On December 3, 2014,
ALJ Coleman found J.I.L. had made a prima
facie showing for re-opening, and joined Dr. Gutti as a party. A telephonic conference was held on December
30, 2014, in which the parties agreed the “reasonableness/necessity” of the
proposed caudal epidural steroid injection was in dispute. ALJ Coleman set a forty-five day proof
schedule, scheduled a benefit review conference (“BRC”), and noted the claim
was re-assigned to the ALJ.
No additional proof was
submitted by either party. The February
24, 2015 BRC order reflects Dr. Gutti did not respond to the medical fee dispute. The parties identified the reasonableness and
necessity of the proposed caudal epidural steroid injection as the contested
issue. The parties also waived their
right to a hearing.
The ALJ made the
following findings of fact and conclusions of law:
. . . .
The record contains the September 29, 2014
utilization review report of Paul Loubser, M.D. who noted a diagnosis of, among
other things, intractable low back pain, lower extremity radiculitis. The denial notice to claimant stated the
treatment is denied for lack of documentation.
In his report, Dr. Loubser noted the Kentucky Guidelines state Epidural
steroid injections are an option for short-term relief of radicular pain after
failure of conservative treatment. The
record reviewed by Dr. Loubser indicated that two months following the
injection, Plaintiff was enjoying relief but because there was not a report
later than the two month mark, Dr. Loubser found there was no proof Plaintiff’s
relief lasted longer than two months.
Plaintiff’s attorney related that the treatment has been effective for
several months and that he has not had an injection in several years.
In a post judgment Motion to Reopen to Assert
a Medical Fee Dispute Defendant Employer has the burden of proving that the contested
medical expenses and/or proposed medical procedure is unreasonable or
unnecessary while the Plaintiff maintains the burden of proving that the
contested medical expenses and/or proposed medical procedure is causally
related treatment for the effects of the work-related injury. Mitee Enterprises vs. Yates, 865 SW2d
654 (KY 1993) Square D Company vs. Tipton,
862 SW2d 308 (KY 1993) Addington
Resources, Inc. vs. Perkins, 947 SW2d 42 (KY App. 1997). In addition, the legislature’s use of the
conjunctive "and" which appears in subsection 1 of KRS 342.020
"cure and relief" was intended to be construed as "cure and/or
relief". National Pizza Company vs.
Curry, 802 SW2d 949 (KY 1991).
In the specific instance, Defendant Employer
has moved to reopen this claim to challenge the reasonableness and necessity of
an epidural steroid injection (ESI). Dr.
Loubser stated the ESI should not be certified as there was no proof the relief
lasted longer than two months. Based on
the review of the record, Defendant Employer has not met its burden of proving
the ESI is not reasonable and necessary for the cure and/or relief of the
effects of the work injury as the guideline states the ESI is intended for
short term relief only.
J.I.L. filed a petition for
reconsideration making the same arguments it now raises on appeal. In the April 2, 2015 order denying J.I.L.’s
petition, the ALJ stated as follows:
. . .
. Basically, Defendant Employer’s petition is an impermissible reargument of
the merits of the case.
Plaintiff was found to be totally disabled by
Opinion, Order and Award dated December 21, 2000 as a result of a back and leg
injury. The ALJ is not convinced based
on the UR report that the treatment is not beneficial. The reason for denial in the UR report is
that Dr. Gutti’s records do not contain enough information. Specifically, the report stated to Dr. Gutti:
The principal reason for our determination is
that you did not submit adequate supporting documentation that the test or
procedure is appropriate.
This explanation is not considered adequate
to support a determination in favor of Defendant Employer. This is more than enough reason to decide the
claim in favor of Plaintiff. Defendant
Employer failed to meet its burden of proving the treatment was not reasonable
and necessary.
On appeal, J.I.L. argues the opinion
of Dr. Loubser is uncontroverted since Williamson produced no medical or lay
evidence indicating the contested medical treatment is reasonable and medically
necessary. It argues since it established
a prima facie case for re-opening,
the burden shifted to Williamson to rebut its evidence, which he failed to
do. Since Williamson failed to produce
any evidence to rebut the opinion of Dr. Loubser, J.I.L. argues the ALJ’s
decision is not based upon substantial medical evidence. Further, J.I.L. argues the ALJ failed to
provide a sufficient explanation for rejecting the uncontroverted medical
opinion of Dr. Loubser in the opinion and order on reconsideration. J.I.L. also argues the ALJ erred by making an
improper finding of fact based on unsworn statements of Williamson’s attorney
when she stated, “Plaintiff’s attorney related that the treatment has been
effective for several months and that he has not had an injection in several
years.”
Reopening of a claim
pursuant to KRS 342.125 is a two-step process. Stambaugh v. Cedar Creek Mining, 488 S.W.2d 681 (Ky. 1972). The first step is the filing of a motion,
which places the burden on the moving party to provide prima facie/or sufficient information to demonstrate a substantial
possibility of success in the event evidence is permitted to be taken. AAA Mine Service
v. Wooten, 959 S.W.2d 440 (Ky. 1998). “Prima
facie evidence” is evidence which “if unrebutted or
unexplained is sufficient to maintain the proposition, and warrant the
conclusion [in] support [of] which it has been introduced . . . but it does not
shift the general burden. . . .” Prudential
Ins. Co. v. Tuggle’s Adm’r., 72 S.W.2d 440, 443 (Ky. 1934). Only
if the moving party prevails in making a prima
facie showing as to all essential elements of the grounds alleged for
reopening will the adversary party be put to the expense of further
litigation. Big Elk Creek Coal Co. v.
Miller, 47 S.W.3d 330 (Ky. 2001). Documentation sufficient for reopening is not
necessarily sufficient to support a decision in the movant’s favor. Step two of the reopening process then
commences, with additional proof time being afforded to allow the merits of the
reopening to be finally adjudicated. Campbell
v. Universal Mines, 963 S.W.2d 623 (Ky. 1998).
Here,
ALJ Coleman determined J.I.L. made a prima
facie showing for reopening, set additional proof time, and assigned the
claim to the ALJ for an adjudication of the merits. However, neither party filed additional
evidence during the forty-five day proof time.
In addition, the right to a hearing was waived. As such, the only evidence in the record
regarding the current medical dispute consists of the five exhibits attached to
J.I.L.’s motion to reopen and medical fee dispute.
Contrary to the assertion by J.I.L., in a post-award medical fee
dispute, the employer bears both the burden of going forward and the burden of
proving the contested treatment or expenses are unreasonable or
unnecessary. National Pizza Company
v. Curry, 802 S.W.2d 949 (Ky. App. 1991); Snawder v. Stice, 576
S.W.2d 276 (Ky. App. 1979); Addington Resources, Inc. v. Perkins, 947
S.W.2d 421 (Ky. App. 1997); Mitee Enterprises vs. Yates, 865 S.W.2d 654
(Ky. 1993); Square D Company v. Tipton, 862 S.W.2d 308 (Ky. 1993). The claimant, however, bears the burden of
proving work-relatedness. See Addington Resources, Inc. v. Perkins, supra.
Since J.I.L. was unsuccessful in proving the
contested medical expenses are unreasonable or unnecessary, the question on
appeal is whether the evidence is so overwhelming, upon consideration
of the whole record, to compel a finding in its favor. Wolf Creek Collieries v. Crum, 673
S.W.2d 735 (Ky. App. 1984). Compelling
evidence is defined as evidence so overwhelming no reasonable person could
reach the same conclusion as the ALJ. REO
Mechanical v. Barnes, 691 S.W.2d 224 (Ky. App. 1985).
Pursuant to KRS
342.275 and KRS 342.285, the ALJ, as the fact-finder, determines the
quality, character, and substance of all the evidence and is the sole judge of
the weight and inferences to be drawn from the evidence. Square D Company v.
Tipton, supra; Miller v. East Kentucky Beverage/Pepsico, Inc.,
951 S.W.2d 329 (Ky. 1997). The ALJ may
reject any testimony and believe or disbelieve various parts of the evidence,
regardless of whether it was presented by the same witness or the same party's
total proof. Magic Coal Co. v. Fox,
19 S.W.3d 88 (Ky. 2000). More important to this appeal, a fact
finder is free to reject even uncontradicted medical evidence
of record if the ALJ provides a sufficient explanation for the rejection.
Commonwealth v. Workers’ Compensation Board of Kentucky, 697 S.W. 2d 540
(Ky. App. 1991); Mengel v. Hawaiian-Tropic Northwest & Central
Distributors, Inc., 618 S.W. 2d 184 (Ky. App. 1981); Collins v.
Castleton Farms, 560 S.W. 2d 830 (Ky. App. 1977). Should the ALJ reject this uncontroverted
medical testimony, he or she must specify his grounds. See Collins v. Castleton Farms, Inc., supra. In other words, unrebutted
evidence compels a finding for the party that it favors unless the ALJ has a
proper basis for rejecting it.
In this
instance, the ALJ rejected the uncontroverted medical opinion of Dr. Loubser,
which was the only evidence in the record addressing the contested
injection. In support of her rejection, the ALJ essentially found Dr. Loubser’s opinion inconsistent with the
mandates of KRS 342.020. As noted by the
ALJ, KRS 342.020 provides the employer shall pay “for the cure and relief” from
the effects of an injury the medical treatment as may reasonably be required,
and the obligation shall continue for so long as the employee is disabled. The phrase “cure and relief” has been
construed as “cure and/or relief.” See National Pizza Company v. Curry,
supra. The ALJ noted Dr. Loubser
stated the Kentucky Guidelines provide steroid injections are an option for
short-term relief of radicular symptoms after failure of conservative treatment. She subsequently found no proof in the
medical records confirming Williamson’s pain relief lasted longer than two
months as required by the Guidelines.
The ALJ then determined J.I.L. failed in its burden of proving the
injection is not reasonable and necessary “for the cure and/or relief of the
effects of the work injury as the guideline state the ESI is intended for short
term relief only.”
In addition, in the
order denying J.I.L.’s petition for reconsideration, the ALJ reiterated Dr.
Loubser’s opinion failed to convince her the caudal epidural steroid injection
is not beneficial. She also found the
fact Dr. Gutti failed to submit supporting documentation was inadequate to support
a determination in favor of J.I.L.
When considered together, we find the
ALJ provided a sufficient basis for rejecting Dr. Loubser’s opinion. The ALJ essentially determined Dr. Loubser’s
underlying basis for recommending denial of the contested injection
inconsistent with KRS 342.020, and
found the failure of Dr. Gutti to submit additional documentation an inadequate
basis for finding in J.I.L.’s favor.
Therefore, the ALJ’s determination J.I.L. failed to meet its burden in
establishing the contested treatment is unreasonable and not medically
necessary will not be disturbed.
We note J.I.L.’s
contention the ALJ erred by making an improper finding of fact based on
unsworn statements of Williamson’s attorney when she stated, “Plaintiff’s
attorney related that the treatment has been effective for several months and
that he has not had an injection in several years.” It is well-established an ALJ cannot consider
evidence outside the record or any argument based on facts not in
evidence. In this instance, although the
ALJ made this statement in the opinion in summarizing the facts of the claim,
it appears she did not consider this conversation in finding in favor of
Williamson. Rather, her analysis in both
the opinion and order, and order on the petition for reconsideration only
address the opinions of Dr. Loubser, and her reasoning for ultimately rejecting
his opinion. Therefore, the ALJ’s
reference to the unsworn statement is found to be a harmless error.
Accordingly, the March 4, 2015 Opinion and Order and April 2, 2015 order denying
J.I.L.’s petition for reconsideration by Hon. Jane Rice Williams,
Administrative Law Judge, are hereby AFFIRMED.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON CLAYTON DANIEL SCOTT
PO DRAWER 1767
PAINTSVILLE, KY 41240
COUNSEL
FOR RESPONDENT:
HON RANDY G CLARK
P O BOX 1529
PIKEVILLE, KY 41502
OTHER
RESPONDENT:
DR SAI GUTTI
PAIN MANAGEMENT CENTER
PO BOX 2158
PIKEVILLE, KY 41502
ADMINISTRATIVE
LAW JUDGE:
HON JANE RICE WILLIAMS
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601