Commonwealth
of Kentucky
Workers’
Compensation Board
OPINION
ENTERED: August 7, 2015
CLAIM NO. 200184174
GLENDA S YOUNG PETITIONER
VS. APPEAL FROM HON. R. SCOTT BORDERS,
ADMINISTRATIVE LAW JUDGE
CUMBERLAND RIVER REGIONAL
MH/MR BOARD
HON. R. SCOTT BORDERS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
REVERSING
IN PART
AND
REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Glenda
Young (“Young”) appeals from the February 3, 2015 Opinion and Order and the
March 17, 2015 Order denying her petition for reconsideration rendered by Hon.
R. Scott Borders, Administrative Law Judge (“ALJ”). In a reopening for a medical dispute, the ALJ
determined a proposed MRI scan, EMG/NCV testing and continued pain management
treatment were neither reasonable nor necessary. Young argues the ALJ erred in addressing
prescription medication, and the ALJ’s decision regarding that medication is
not supported by substantial evidence.
For the reasons set forth herein, we reverse in part and remand.
Young sustained a
lumbar strain on July 1, 2001. She
settled her claim by agreement approved June 30, 2003 with medical benefits
remaining open. Cumberland River
Regional MH/MR Board (“Cumberland”) filed a motion to reopen and Form 112 on
August 25, 2014 to contest the reasonableness and necessity of a proposed MRI
scan and EMG/NCV testing recommended by the Pain Treatment Center. Cumberland sought to amend its motion to
challenge continued pain management treatment, though no amended Form 112 or
written motion appears in the record.
The ALJ sustained Cumberland’s motion to amend in the January 6, 2015 benefit
review conference (“BRC”) order. The
order reflects there was no appearance by the claimant or her counsel, although
the Pain Treatment Center was represented and participated in the BRC. The order noted the parties waived the
hearing and the matter was taken under submission at that time.
Cumberland supported
the motion with the July 28, 2014 utilization review report of Dr. Bart
Olash. Dr. Olash recommended denial of
the proposed MRI and EMG/NCV testing as not medically reasonable or
necessary. He noted Young had no
objective physical findings of instability, nerve root impingement or spinal
stenosis. Young had three MRIs since the
injury and her symptoms were the same as she had reported before the last MRI
on April 25, 2013. Dr. Olash noted the
EMG/NCV testing performed following the injury was normal.
On January 20, 2015,
Cumberland filed the January 15, 2015 physician review report and January 16,
2015 utilization review notice of denial of Dr. John Rademaker. Dr. Rademaker opined further narcotic
medication, drug testing, and treatment at the Pain Treatment Center are not
reasonable or necessary treatment for the work-related condition. Dr. Rademaker indicated Young sustained only
a strain as a result of the 2001 work injury and does not show any type of
acute or traumatic injury.
Cumberland submitted the
report of Dr. Daniel Primm who performed an independent medical evaluation on
December 5, 2014. Dr. Primm reviewed
medical records and test results dating from 1999 to the present. Dr. Primm diagnosed a lumbar strain as a
result of the 2001 work accident.
Multiple MRI scans did not show any type of acute or traumatic
injury. Dr. Primm opined Young requires
no further regular pain management treatment.
He stated Young needs no narcotics or muscle relaxants and there is no
indication for continued MRI scans or EMG/NCV studies.
Young and the Pain
Treatment Center submitted medical records documenting treatment from October
17, 2013 through November 6, 2014. Young
complained of lower back pain radiating down her legs which she attributed to
the 2001 injury. Her pain gradually
increased over the years. She was
diagnosed with chronic pain due to trauma, lumbar degenerative disc disease,
myofascial pain syndrome, and a-reflexia.
An MRI scan and EMG/NCV testing were ordered due to increasing complaints
of pain.
The ALJ found Dr.
Primm’s opinion most persuasive and concluded Cumberland met its burden of
proving the proposed lumbar MRI scan, EMG/NCV testing of the lower extremities
and continued pain management treatment were not reasonable or necessary
treatment for the work-related lumbar strain and therefore
non-compensable.
Young filed a petition
for reconsideration arguing the ALJ erred in addressing any question beyond the
compensability of the MRI and EMG/NCV testing identified in the medical
dispute. Young denied any knowledge
prior to issuance of the opinion and order that pain management treatment was
included in the dispute. The ALJ
overruled Young’s petition, stating it requested relief beyond that afforded by
KRS 342.285.
On appeal, Young argues
the only medical dispute properly before the ALJ concerned the proposed MRI and
EMG/NCV testing. Young notes the
evidence filed with the motion to reopen and the Form 112 did not mention pain
management as a subject of the dispute.
Further, Cumberland did not file a motion to amend the medical dispute
to include the pain management treatment.
Moreover, Young argues the ALJ’s determination that prescription
medications are non-compensable is not supported by substantial evidence. She asserts the treatment records from The
Pain Treatment Center establish she continues to have symptoms related to the
work injury which necessitate the prescription medication.
The question of whether
the continuing pain management treatment is reasonable and necessary was not
properly before the ALJ and therefore we reverse. The inclusion of the new issue at the BRC
with no opportunity for Young to present evidence or to be heard is an obvious
violation of her due process rights and was an abuse of discretion. Abuse of discretion by definition “implies
arbitrary action or capricious disposition under the circumstances, at least an
unreasonable and unfair decision.” Kentucky National Park Commission v. Russell, 187 S.W.2d 214
(Ky. 1945).
The fundamental requirement
of due process of law is the opportunity to be heard at a meaningful time and
in a meaningful manner. See U.S.C.A. Const. Amends. 5, 14; Const. § 2. In
Kentucky Alcoholic Beverage Control Board v. Jacobs, 269 S.W.2d 189 (Ky. 1954), the Court held the
requirements of procedural due process included a
hearing, the taking and weighing of evidence, findings of facts based upon
consideration of the evidence, the making of an order supported by substantial
evidence, and, where the parties’ constitutional rights are involved, judicial
review of administrative action. See
also Utility Regulatory Commission v.
Kentucky Water Service Co., Inc., 642
S.W.2d 591 (Ky. 1982).
Here, Young was not
afforded an opportunity to present evidence concerning the ongoing pain
management treatment. Cumberland filed
no written motion to contest the pain management treatment, nor did it file a
written motion to amend the pending dispute to include that treatment. Rather, from the absence of anything in the
record that indicates otherwise, it appears Cumberland made an oral motion to
amend at the January 6, 2015 BRC.
Significantly, the case was taken under submission at that time with no
provision for filing additional proof.
Thus, Young was given no opportunity to present evidence regarding the
need for continued pain management treatment.
Additionally, the ALJ considered the report of
Dr. Rademaker who had not performed his review, nor had the utilization review
denial been issued, prior to the dispute being taken under submission.
We recognize 803 KAR 25:010 Section 13 (15) provides upon motion with
good cause shown, an ALJ may order additional discovery or proof be taken
between the BRC and the date of the hearing, but no regulation anticipates
proof taking after the case is taken under submission. In T. J. Maxx v. Blagg, 274 S.W.3d 436
(Ky. 2008), the Supreme Court, in interpreting 803 KAR 25:010 Section 13 (15),
determined an ALJ erred by ordering a university evaluation after taking the
claim under submission. The Court noted
the above cited regulation permitted an ALJ to order additional discovery or
proof between the BRC and the hearing upon motion with good cause shown, but no
regulation anticipates that additional proof will be taken after a claim has
been heard, briefed, and taken under submission. Again, we note the claim sub judice was taken under submission at the January 6, 2015 BRC
and no provision was made for the submission of additional evidence. The ALJ improperly considered the report of
Dr. Rademaker submitted after the dispute had been taken under submission.
Although we determine the ALJ could not properly consider the
reasonableness and necessity of the continuing pain management treatment, in
the future Cumberland is free to file a motion to reopen to
contest future medical expenses on the basis of
reasonableness and necessity.
In its brief to the Board, Cumberland contends the Pain Treatment
Center is an indispensable party and Young’s failure to name it as a respondent
in her notice of appeal is fatal to her appeal.
An indispensable party is one whose absence prevents the tribunal from
granting complete relief among those already parties. See CR 19.01; CR
19.02; Braden v. Republic-Vanguard Life Ins. Co., 657 S.W.2d 241 (Ky.
1983); Milligan v. Schenley Distillers, Inc., 584 S.W.2d 751 (Ky. App.
1979). Here, the issue regarding
pain management involved prospective treatment rather than treatment already
rendered. The provider is not an
indispensable party with regard to the question of the need for ongoing
treatment or whether the pain management issue was properly before the ALJ.
Accordingly, the February 3, 2015 Opinion and Order and the March 17,
2015 Order denying her petition for reconsideration rendered by Hon. R. Scott
Borders, Administrative Law Judge, is REVERSED
IN PART and this matter is REMANDED
for entry of an amended Opinion and Order addressing only the MRI and EMG/NCV
testing.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON EDMOND COLLETT
PO BOX 200
ASHER, KY 40803
COUNSEL
FOR RESPONDENTS:
HON W BARRY LEWIS
PO BOX 800
HAZARD, KY 41702
HON KATHLEEN LUCHTEFELD
280 PASADENA DR
LEXINGTON, KY 40503
ADMINISTRATIVE
LAW JUDGE:
HON. R. SCOTT BORDERS
PREVENTION PARK
657 CHAMBERLIN AVE
FRANKFORT, KY 40601