*/
Workers’
Compensation Board
OPINION
ENTERED: July 17, 2015
CLAIM NO. 200691520
GAYLE J. JACKSON PETITIONER
VS. APPEAL FROM HON. JOHN
B. COLEMAN,
ADMINISTRATIVE LAW JUDGE
COPPAGE CONSTRUCTION COMPANY
and HON. JOHN B. COLEMAN,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member. Gayle J. Jackson (“Jackson”), pro se, appeals from the March 30, 2015,
Opinion and Order of Hon. John B. Coleman, Administrative Law Judge (“ALJ”)
resolving a medical fee dispute in favor of Coppage Construction Company
(“Coppage”). The ALJ determined pain management,
including opioid prescriptions, provided by the Blatman Health & Wellness
Center (hereinafter referred to as “Blatman Pain Clinic”) is not reasonable and
necessary or causally related to Jackson’s alleged right arm injury.
In Jackson’s Form 101 filed March 19, 2008, she alleged an
injury occurring on March 27, 2006, to the “[r]ight [a]rm from the elbow to the
right hand.”
On August 29, 2009, Hon. Joseph Justice, Administrative Law
Judge, approved the Form 110 executed by the parties settling Jackson’s
claim. The Form 110 reveals Dr. James
Templin assessed a 3% impairment rating on February 25, 2008. His diagnosis was chronic right arm and hand
pain syndrome and chronic right wrist pain syndrome. The Form 110 states Jackson returned to light
duty after the injury. Jackson settled
for a lump sum of $3,314.29 based on a 3% permanent disability plus temporary
total disability benefits previously paid.
Jackson did not waive her right to medical benefits, vocational
rehabilitation, and to reopen with the exception the parties agreed the claim “cannot
be reopened with regard to adjustment of the multipliers under KRS
342.730(1)(c).”
Jackson subsequently sought to reopen her claim based on a
worsening of her condition and asserting she is permanently totally
disabled. During these proceedings,
Coppage filed a medical fee dispute contesting the treatment provided by Dr.
Janalee Rissover. Specifically, it contested
the prescriptions for Elavil, Norco Amitriptyline, and sympathetic blocks.
Relying primarily upon the opinions of Drs. Joseph Zerga
and Michael Rozen, in an Opinion and Order rendered July 17, 2012, Hon. Otto D.
Wolff, IV, Administrative Law Judge (“ALJ Wolff”) found Jackson had not
presented persuasive evidence she experienced a worsening of impairment since
her settlement, and she was not permanently totally disabled. In an August 20, 2012, Order ruling on a
petition for reconsideration, relying upon the opinion of Dr. Zerga, ALJ Wolff resolved
the medical fee dispute in favor of Coppage and ordered it was not liable for
the disputed treatment and medications.
Jackson appealed to the Board and the Court of Appeals and
both affirmed.[1]
On September 19, 2014, Coppage filed a Form 112 medical fee
dispute, a “motion to reopen for medical fee dispute and motion to join medical
provider.” Coppage cited to the
settlement documents and the previous opinions of ALJ Wolff, this Board, and
the Court of Appeals. It asserted that
in spite of the litigation, Jackson continued to treat with Dr. Rissover who
subsequently transferred her treatment to the Blatman Pain Clinic in 2012. Since that time, Blatman Pain Clinic has
continued to treat Jackson without a request by her to change the designated
treating physician. Coppage represented
Jackson has continued to take multiple medications and pursue other forms of
treatment including massage therapy.
Based on the opinions of Dr. Michael J. Rozen who undertook a recent
review of the medical records, it asserted Jackson did not have Reflex Sympathetic
Dystrophy (“RSD”) or Complex Regional Pain Syndrome (“CRPS”) and there is
insufficient medical documentation to support chronic opioid medication as
treatment of her 2006 work injury. It
contended the injury alleged in 2006 was a soft tissue injury which should have
resolved within a period of one week.
Coppage noted when Jackson was seen by Dr. Zerga in 2010 he indicated a
diagnosis could not be made and Jackson had subjective complaints with no
objective findings. It also noted Dr.
Zerga concluded there was no objective reason for any continued medical
treatment. Thus, it asserted continued
medical treatment including medications provided to Jackson are not reasonable
and necessary or causally related to the 2006 work injury.
On that same date, Coppage also filed
Dr. Rozen’s September 9, 2014, report.
In his report, Dr. Rozen stated any medical treatment based on the work
injury was not appropriate.
On October 23, 2014, the ALJ entered an order finding
Coppage had made a prima facie
showing for reopening, sustaining the motion to reopen, and joining Blatman
Pain Clinic as a party. The order also
set a telephonic conference and directed the parties not to re-file or
designate medical reports or records attached to the motion to reopen and Form
112. Further, filing a Form 111 was not required.
The November 24, 2014, Scheduling Order reflects the challenged
and unpaid procedure at issue was “chronic opioid prescriptions.” The basis for the challenge was
reasonableness/necessity and causation/work-relatedness.
Coppage filed Dr. Rozen’s January 13,
2011, report and Dr. Zerga’s December 22, 2010, report filed in the medical fee
dispute resolved by ALJ Wolff as well as Dr. Zerga’s October 6, 2014, report
and Dr. Rozen’s February 25, 2015, report.
Jackson introduced the December 17, 2014, report of Dr. Hal
S. Blatman and Blatman Health & Wellness Center’s medical records dated
February 25, 2015, May 21, 2013, and December 4, 2012.
Only Jackson testified at the February 23, 2015,
hearing. She testified she had been
treated by Dr. Rissover who referred her to Dr. Blatman in 2012. She only treats with Dr. Blatman. Jackson had just started seeing Dr. Blatman
every month. His treatment consisted of
prescribing medication and administering “2 trigger shots.” Jackson pays for the treatment she receives
from Blatman which she believes helps.
She currently takes “Percocet, a sleep aid, and anti-depressants.” Her current symptoms are “burning and
throbbing in [her] arms, legs, head, back, neck, and all over.” Her most discomfort occurs in her right arm extending
to her neck. She also has throbbing
muscle spasms which extend to her back and burning and numbness in her arms and
legs. Her next worst symptom is in the
lower body. Her left arm is the most
functional. She believes her condition
has remained the same. She has been on
medication since she was hurt and cannot function without the pain medication
and sleep aids. She performs some
therapy at home.
In resolving the medical fee dispute in favor of Coppage, the
ALJ provided the following analysis:
It is the employer's responsibility to pay
for the cure and relief from the effects of an injury or occupational disease,
all medical, surgical, hospital treatment, including nursing, medical and
surgical supplies and appliances as may be reasonably be required at the time
of the injury and thereafter during disability... K.R.S.342.020. However,
treatment which is shown to be unproductive or outside the type of treatment generally
accepted by the medical profession is
unreasonable and non-compensable. This
finding is made by the Administrative Law Judge based upon the facts and
circumstances surrounding each case. Square D Company v. Tipton 862 SW2d 308
(Ky. 1993). In a post-award medical fee dispute, the employer has the burden of
proving that contested medical treatment is not reasonable or necessary for the
cure and relief of a work injury. National
Pizza Company v. Curry, 802 SW2d 949 (Ky. App., 1991). However, the burden of
proving work relatedness and causation remains with the claimant. R.J. Corman R.R. Construction Company v.
Haddix, Ky., 864 SW2d 915 (1993).
After a careful review of the facts and
circumstances presented herein, I am convinced the defendant has met its burden
of proving the contested medical expenses are unreasonable and unnecessary for
the cure and/or relief of the plaintiff's work related injury. In making this
determination, I am convinced by the opinion of Dr. Zerga the plaintiff has no
objective evidence of injury for which the type of treatment prescribed by Dr.
Blackman would be reasonable or necessary. While the plaintiff's claim for
benefits involved only the right arm, she relates to Dr. Blackman pain in her
neck, shoulders, arms, lower back, thighs, left arm and tingling down the back
of both thighs. While the plaintiff may
have other conditions for which the pain management regimen is necessary, there
is nothing relating the need for this pain management to the alleged right arm
injury for which the plaintiff has no objective evidence to substantiate. The defendant as a workers compensation
insurer is not a general insurer and is not responsible for payment of expenses
associated with treatment for non-work related conditions. Therefore, I am
convinced the contested treatment is not compensable pursuant to KRS 342.020.
No petition for
reconsideration was filed.
On appeal, Jackson asserts the history
of this litigation should have led the ALJ to conclude the previous opinion and
order were erroneous and he should have ruled in her favor. She maintains Coppage has failed to pay all
the medical expenses to which she is entitled.
As a result, she is forced to pay her own medical expenses for the
treatment of RSD which arose “from the initial work injury.” Jackson maintains she sees Dr. Blatman every
month only for the treatment of work-related RSD. She asserts Dr. Blatman would have noted any
treatment unrelated to her work injury.
Similarly, he would have stated if the treatment for RSD was unrelated
to her work injury. Jackson contends Dr.
Blatman has never prescribed medications for non-work-related RSD pain. She maintains Drs. Zerga and Rozen have not
seen her on a regular monthly basis and should not have been relied upon over
the findings and opinions of Dr. Blatman.
Jackson cites to the opinions of Dr. Blatman which indicate the
treatment provided is medically necessary for her work injury. She notes Dr. Rissover agreed with these
findings. Jackson concludes with the
following:
According to the International Research Foundation for RSD/CRPS it
states, ‘[t]he objective finding of differences in temperature and color of the
skin can be missed by the physician if only a single physical examination is
made. Therefore, the evaluating physician must assess more than just subjective
complaints. The physician must aggressively seek and document objective
findings.’ This alone proves that Dr. Zerga and Dr. Rozen’s opinion have no
medical relevance to whether or not Petitioner should continue treatment. A
person with RSD have good days and bad days, also stated by the International
Research Foundation for RSD/CRPS, so if only seen once every few years, such as
Dr. Zerga and Dr. Rozen has, shows and proves nothing on what evidence is found
to prove any case.
Jackson
requests the Board reverse the ALJ’s decision and remand for further
proceedings.
In his January 13, 2011, report, based
upon physical examination and a records review, Dr. Rozen concluded there was
no diagnosis. He noted even though
Jackson had subjective right arm pain complaints, she did not have objective
findings or criteria to support a diagnosis of RSD or CRPS. Consequently, she did not have a diagnosis
related to the March 27, 2006, injury.
At most, she sustained a soft tissue contusion which resolved within a
short period of time. Consequently, her
condition no longer exists and she did not have a permanent impairment based on
the 5th
Edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment. Since Jackson
did not have any permanent work restrictions, Dr. Rozen believed she retained
the physical capacity to return to the same type of job performed at the time
of injury. Finally, he did not recommend
any future medical treatment due to the work injury.
In his September 9, 2014, report, Dr. Rozen cited his findings based
upon his previous medical examination and his opinions set out in his January
2011 report. He indicated he had
reviewed the medical records of Dr. Rissover and the medical report of Dr. Craig
M. Uejo. Dr. Rozen stated his previous
examination of Jackson revealed she had numerous Waddell findings without any
objective physical findings to support her subjective pain complaints. Further, she did not have any findings to support
the criteria required for a diagnosis of RSD or CRPS. A review of the additional medical records
did not support the presence of RSD or any other condition related to the
subject work injury. Dr. Rozen concluded
the additional medical documentation “is insufficient to support chronic opioid
medication prescriptions in [Jackson].”
He again reiterated Jackson’s previous injury was at most a soft tissue
injury which should have resolved within a fairly short period of time.
Dr. Rozen’s February 25, 2015, report reveals he conducted a physical
examination on February 10, 2015, and reviewed the records of Dr. Rissover,
Blatman Pain Clinic, and the report of Dr. Zerga. Based on his examination and review of the
medical records, Dr. Rozen again concluded there was no diagnosis. Even though Jackson had subjective right arm
pain complaints she did not have objective findings or criteria supporting a
diagnosis of a right upper extremity condition including CRPS. Consequently, Jackson did not currently have
any diagnosis relating to the March 27, 2006, injury. At most, Jackson had a soft tissue injury
which resolved within a very short period of time. He concluded the treatment provided by Dr.
Blatman and any future treatment of Jackson’s right arm would not be
reasonable, medically necessary, or related to her 2006 work injury. Dr. Rozen reaffirmed his opinions expressed
in his previous reports.
The December 22, 2010, report of Dr. Zerga reflects he obtained a
history, conducted a physical examination, and reviewed various medical
records. Based on this information, Dr.
Zerga stated there “is no specific diagnosis.”
She had subjective complaints of inability to move her right arm with
tenderness in the right arm, but no objective findings to indicate a specific
diagnosis. Thus, Jackson did not have a
specific condition which he could relate to the March 27, 2006, injury. Jackson had reached maximum medical
improvement relative to the work injury.
Based on the vagueness of her complaints and non-specific presentation,
Dr. Zerga agreed with Dr. Templin’s 3% impairment rating. Dr. Zerga found no objective reason for any
permanent restrictions and believed Jackson retained the physical capacity to
return to the type of work she performed at the time of injury. There was no objective reason for any
continued medical treatment.
In his October 6, 2014, report, Dr. Zerga indicated he had reviewed
various medical records including the records of Dr. Rissover, Dr. Rozen, and
Blatman Pain Clinic. Dr. Zerga stated
the information and records do not change the opinions expressed in his
December 22, 2010, report as there was no indication Jackson has any specific
physical condition which would require any further medical treatment related to
the 2006 work injury. Dr. Zerga
concluded by stating:
There are no objective findings in this
individual. She has a multitude of complaints now including her right arm, her
right thigh, her low back, and intermittent weakness in her legs, none of which
have any objective basis on evaluation.
In a post-award medical fee dispute,
the burden of proof and risk of non-persuasion with respect to the reasonableness
and necessity for the 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 (
Furthermore, in the
absence of a petition for reconsideration, on questions of fact, the Board is
limited to a determination of whether there is substantial evidence contained
in the record to support the ALJ’s conclusion.
Stated otherwise, inadequate, incomplete, or even inaccurate fact-finding
on the part of an ALJ will not justify reversal or remand if there is substantial
evidence in the record that supports the ultimate conclusion. Eaton Axle Corp. v. Nally, 688 S.W.2d
334 (
Our only task is to determine whether
substantial evidence supports the ALJ’s decision in this case. Here, substantial evidence supports the ALJ’s
finding the pain management regimen, including opioid prescriptions, is not
reasonable and necessary treatment of Jackson’s alleged right arm injury. Substantial evidence also supports the ALJ’s determination
the medical treatment provided by Blatman Pain Clinic is not treatment of a
condition caused by the alleged March 27, 2006, work injury. The ALJ stated he was convinced by the
opinions of Dr. Zerga that there was no objective evidence of an injury for
which the type of treatment prescribed by Dr. Blatman would be reasonable or
necessary. The opinions of Dr. Zerga as
recited herein constitute substantial evidence supporting the ALJ’s decision. The
ALJ also stated there was a lack of objective evidence to substantiate the need
for treatment of the right arm as outlined by Dr. Zerga and confirmed by Dr.
Rozen. As such, we believe the opinions
of Dr. Rozen also constitute substantial evidence supporting the ALJ’s
determination regarding the medical treatment in question. Because the ALJ’s decision is supported by substantial
evidence in the record, we are without authority to disturb his decision on
appeal. Special Fund v. Francis,
708 S.W.2d 641 (Ky. 1986).
Accordingly, the March
30, 2015, Opinion and Order of Hon. John B. Coleman, Administrative Law Judge,
is AFFIRMED.
ALL CONCUR.
PETITIONER/PRO
SE:
GAYLE J JACKSON
3821 LONSDALE ST
CINCINNATI OH 45227
RESPONDENT:
BLATMAN PAIN CLINIC
10653 TECHWOODS CIRCLE STE 101
CINCINNATI OH 45242
COUNSEL FOR RESPONDENT:
HON DOUGLAS A U’SELLIS
600 E MAIN ST STE 100
LOUISVILLE KY 40202
ADMINISTRATIVE
LAW JUDGE:
HON JOHN B COLEMAN
107 COAL HOLLOW RD STE 100
PIKEVILLE KY 41501
[1]
This Board affirmed the ALJ’s opinion
in an opinion rendered August 8, 2013. The Court of Appeals affirmed the Board
in an opinion rendered November 14, 2014.
