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Workers’
Compensation Board
OPINION
ENTERED: July 8, 2016
CLAIM NO. 201072244
KEVIN TURPEN PETITIONER
VS. APPEAL FROM HON. JANE RICE
WILLIAMS,
ADMINISTRATIVE LAW JUDGE
ZOELLER PUMP CO.
and HON. JANE RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Kevin Turpen (“Turpen”) appeals from the February 24, 2016, Medical Fee Opinion
and Order on Remand of Hon. Jane Rice Williams, Administrative Law Judge
(“ALJ”) resolving a medical fee dispute in favor of Zoeller Pump Co.
(“Zoeller”). Based on the medical fee
dispute filed by Zoeller, the ALJ determined treatment by Kim White, APRN
(“APRN White”), and the prescriptions Hydrocodone, Xanax, and Prozac were not
causally “related to the cure and/or relief of the effects of the work injury
and, therefore, the treatment is non-compensable.”
This is the second appeal involving
the medical fee dispute filed by Zoeller.
Since the ALJ incorrectly placed the burden of proof upon Turpen to
prove the contested treatment was reasonable and necessary rather than causally
related to the work injury, in the January 15, 2016, Opinion, this Board
vacated the ALJ’s decision and remanded for a determination based on all of the
evidence and an accurate understanding of who bore the burden of proof. We adopt our summary of the procedural
background contained in our January 15, 2016, Opinion:
Turpen
filed a Form 101 on July 27, 2011 alleging he injured his back and right hip on
August 27, 2010 while lifting a cast iron shell at work. An interlocutory decision was rendered by
Hon. John B. Coleman, Administrative Law Judge (“ALJ Coleman”) awarding
temporary total disability and medical benefits, including a back surgery
proposed by Dr. Jonathan Hodes. Although Dr. Hodes initially recommended
surgery, he later stated it was unnecessary due to normal findings on a
subsequent MRI. The claim was settled by the parties, and a Form 110-I was
approved by ALJ Coleman on April 29, 2013.
On
February 11, 2015, Zoeller filed a motion to reopen the claim, and a Form 112
medical dispute to challenge a treatment with certain medications, and ongoing
treatment with Kim White, APRN (“APRN White”), as not being caused by a work
injury.
Further, we summarized
the evidence as follows:
Zoeller filed the January 12, 2015 report
of Dr. Steven Wunder in support of the medical dispute. Dr. Wunder noted Turpen
reported his low back and hip pain began with a work injury which occurred on
August 27, 2010. Dr. Wunder noted Turpen
had complained of low back and hip pain for years prior to the work injury. He
noted Dr. Hodes had originally recommended surgery, but this recommendation was
rescinded after a subsequent MRI showed the disc protrusion had resolved. He
specifically stated:
Based
on my history, physical examination and review of the records, the following
opinions are offered with a reasonable degree of medical probability.
I
do not believe that Mr. Turpen’s chronic low back symptoms are a direct and
proximate result of the August 27, 2010, incident. I believe his symptoms would be due to the
chronic low back pain that dated back to 2005.
This is well documented in the records.
This is further confirmed by Dr. Ballard. She did not think the need for his ongoing
care was related to the work accident on August 27, 2010. His current exam showed a lot of exaggerated,
inconsistent and non-organic findings.
The medication prescriptions are the same as what he was taking before
August 27, 2010.
Zoeller
also filed the March 30, 2015 note of APRN White which states, “I have not been
seeing Kevin Turpen for his workers’ comp injury. I see him every six months
for his regular checkups and fill his pain medication monthly for his chronic
back pain.”
Zoeller
additionally filed the April 30, 2013 report of Dr. Ellen Ballard who noted
Turpen’s history of chronic low back pain, which he stated worsened with
walking, or movements in his sleep. Dr. Ballard determined Turpen’s chronic low
back pain existed prior to his work injury. She noted Turpen reported he began
treating with medication for this condition in 2006, and had additionally
sought treatment with a chiropractor.
APRN
White testified by deposition on June 22, 2015. She began treating Turpen in
2008 for various conditions, including high blood pressure, reflux, chronic low
back pain and diverticulosis. Although she stated Turpen takes Hydrocodone as a
maintenance treatment for his chronic low back pain, she admitted he had
complained of this condition since she first treated him in July 2008, and he
has taken this medication consistently since that time. She additionally noted
Turpen has taken Xanax since 2008.
Attached
to APRN White’s deposition were the report of Dr. Hodes which was filed with
the Form 101, and the October 30, 2008 report of Dr. Lawrence Peters. Dr. Peters stated as follows:
Mr.
Turpen was referred here initially via Dr. Kemper, I believe, for back pain
with left lower extremity radiculopathy.
He does have discogenic back abnormalities with herniation at L5-S1,
which is consistent with his symptom complex.
The parties waived a hearing and the case stood
submitted for a decision. The July 7,
2015, Benefit Review Conference (“BRC”) Order notes the issues to be determined
were causation and work-relatedness of the treatment administered and
recommended by APRN White and the medications including Hydrocodone, Xanax, and
Prozac.
In the initial July 21, 2015, decision, the ALJ made no
reference to APRN White’s deposition testimony.
The February 24, 2016, decision demonstrates the ALJ reviewed APRN White’s June 22, 2015, deposition prior to
entering the Opinion and Order on Remand.
In determining the
treatment afforded by APRN White and the three challenged prescription
medications are non-compensable, the ALJ entered the following findings of
facts and conclusions of law:
A
telephonic Benefit Review Conference was held on July 7, 2015. The final
hearing was waived and the Medical Fee Dispute was submitted on the record for
a decision.
Defendant
Employer introduced the April 30, 2013 report of Ellen Ballard, M.D., who
conducted follow up examination and determined Plaintiff’s chronic low back
pain pre-existed his work injury. He had come to Dr. Ballard who refused to
make a referral to Dr. Peters as she did not determine Plaintiff’s pain to be
work related.
Defendant
Employer introduced the January 12, 2015 report of Steven S. Wunder, M.D., who
conducted an independent medical evaluation on January 12, 2015 and determined
Plaintiff’s chronic low back pain symptoms were not related to the August 27,
2010 work injury. It is well documented in the records Plaintiff had suffered
chronic low back pain dating back to 2005. He agreed with Dr. Ballard who
determined the ongoing care would not be related to the work injury. His
current exam showed exaggerated, inconsistent behavior and no organic findings.
The medication prescriptions are the same now as what he was taking prior to
the August 27, 2010 work injury.
Kim
White, APRN testified by deposition on June 22, 2015. She has treated Turpen
since July 14, 2009, prior to the work injury, and sees him every three to six
months. She maintains his medications so that he is able to function. She last
saw him on May 27, 2015. She treats him for high blood pressure, reflux,
chronic low back pain and diverticulosis. Back surgery had been ordered by the
ALJ on April 11, 2012 but did not occur. Hydrocodone is prescribed for pain
maintenance. Xanex [sic] and Prozac are for chronic anxiety which she relates
to chronic pain. He has remained on the same dosage and has been compliant
based on testing.
White
wrote a March 30, 2015 letter simply stating she was not seeing Plaintiff for
his workers’ comp injury. “I see him every 6 months for his regular checkups
and fill his pain medications monthly for his chronic back pain.” During her
deposition she testifies she was not the workers’ compensation physician, she
was simply treating him for chronic pain as a result of the work injury. She
attempted a referral to a pain physician, Dr. Peters, with whom Plaintiff
treated in 2008, but the carrier denied the request.
White
testified she had noticed an increase in pain over the past couple of years
compared to 2008. In 2008, Turpen
treated for anxiety but not depression. The record includes a letter from White
on July 10, 2008 where Turpen requested a referral to Dr. Peters for pain
management. He was taking Zantac, Xanax and Lortab. The office note read,
“Chronic low back pain L5-S1 protrusion and gird anxiety.” Attached to the
deposition is a letter from Dr. Peters dated October 30, 2008 where he treated
Turpen for lower extremity radiculopathy and noted discogenic back
abnormalities with herniation at L5-S1. Dr. Peters planned to perform epidural
steroid injections to control the pain. On several occasions when asked if
Turpen’s problems were worse due to the work injury, White stated she based her
response on what Turpen had to say. She stated the chronic back pain to which
she made reference in the March 30, 2015 letter was the same chronic back pain
for which he treated on July 10, 2008.
In
a post-judgment Motion to Reopen to Assert a Medical Fee Dispute, Defendant
Employer has the burden of proving the contested medical expenses and/or
proposed medical procedure is unreasonable or unnecessary while Plaintiff
maintains the burden of proving that the contested medical expenses and/or
proposed medical procedures 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 [sic] specific instance, Defendant Employer has moved to reopen this claim
to challenge the work relatedness of treatment by Kim White, APRN and
prescriptions for hydrocodone, Xanax and Prozac. After review of the evidence,
the letter from Kim White that her treatment is not related to the work injury,
and reviewing her deposition transcript, it is found Plaintiff has not met his
burden of proving the treatment was work related. Plaintiff had a well-established
pain and depression condition prior to the work injury and has not persuaded
the ALJ otherwise.
Therefore,
it is found herein Plaintiff has not met his burden of proving the treatment is
related to the cure and/or relief of the effects of the work injury and,
therefore, the treatment is non-compensable.
Turpen did not file a
petition for reconsideration.
On appeal, Turpen argues
the ALJ erroneously relied upon APRN White’s March 30, 2015, letter in reaching
her decision. Turpen argues the ALJ misunderstood
or misconstrued the work-relatedness opinions of APRN White. Turpen insists that in her deposition, APRN
White “explained the error of her one sentence letter of 3/30/15 and opined the
work relatedness of her treatment of the Petitioner.”
Turpen also complains the ALJ did not
provide a summary of the conflicting evidence nor provide a sufficient basis to
support her ultimate findings and conclusions.
Turpen contends the evidence overwhelmingly establishes the subject
treatment provided by APRN White and the prescriptions in question are work-related.
Turpen also maintains APRN White’s deposition testimony establishes her March
30, 2015, letter was not intended to indicate otherwise.
Turpen asserts his history
of chronic back pain dating back to 2005 is not dispositive of the medical fee
dispute as he testified his symptoms mostly resolved with treatment. He asserts he was able to continue working
his regular duty without restrictions and only had to utilize the Hydrocodone
for flare-ups. Turpen asserts he also
testified that since the injury his low back pain has been much worse than the
pre-injury pain.[1]
Similarly, Turpen asserts
even though he was taking anxiety prescription medication prior to the work
injury, he was only using it occasionally.
He cites to APRN White’s testimony as to the need for Xanax. Turpen contends his anxiety has increased
since the August 2010 work injury.
In a post-award medical fee dispute,
the burden of proof and risk of non-persuasion with respect to the reasonableness
of medical treatment falls on the employer.
National Pizza Company vs. Curry, 802 S.W.2d 949 (
Further, we are mindful of the
Kentucky Supreme Court’s holding in C & T of Hazard v. Stollings,
2012-SC-000834-WC, rendered October 24, 2013, Designated Not To Be Published,
that the burden is placed on the party moving to reopen because it is that
party who is attempting to overturn a final award of workers’ compensation and
must present facts and reasons to support the party’s position.
The party responsible for paying
post-award medical expenses has the burden of contesting a particular expense
by filing a timely motion to reopen and proving it to be non-compensable. Crawford
& Co. v. Wright, 284 S.W.3d 136, 140 (Ky. 2009) (citing Mitee
Enterprises v. Yates, 865 S.W.2d 654 (Ky. 1993) (holding that
the burden of contesting a post-award medical expense in a timely manner and
proving that it is non-compensable is on the employer)). As stated in Larson's
Workers' Compensation Law, § 131.03[3][c], “the burden of proof of showing
a change in condition is normally on the party, whether claimant or employer,
asserting the change ....” The burden is placed on the party moving to reopen
because it is that party who is attempting to overturn a final award of
workers' compensation and thus must present facts and reasons to support that
party's position. It is not the responsibility of the party who is defending
the original award to make the case for the party attacking it. Instead, the
party who is defending the original award must only present evidence to rebut
the other party's arguments.
. . .
Thus, C & T had the burden of proof to show that Stolling's
treatment was unreasonable and not work-related.
Slip Op. at 4-5.
Since Turpen was unsuccessful in proving the
need for continuing treatment by APRN White and the prescription medications
are causally related to his work injury, the issue in this appeal is whether
the evidence compels a different conclusion.
Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App.
1984). Compelling evidence is defined as
evidence that is 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).
In other words, an unsuccessful claimant on appeal must prove that the
ALJ’s findings are unreasonable and, thus, clearly erroneous, in light of the
evidence in the record. Special Fund
v. Francis, 708 S.W.2d 641 (Ky. 1986).
In rendering a decision, KRS 342.285
grants an ALJ as fact-finder the sole discretion to determine the quality,
character, and substance of evidence. Square D Co. v.
Tipton, 862 S.W.2d 308 (
The function of the Board in
reviewing an ALJ’s decision is limited to a determination of whether the
findings made are so unreasonable under the evidence that they must be reversed
as a matter of law. Ira A. Watson
Department Store v.
Pursuant
to KRS 342.285, an award or order of the ALJ as provided in KRS 342.275 shall
be conclusive and binding as to all questions of fact if a petition for
reconsideration is not filed as provided for in KRS 342.281. KRS 342.281
provides for the filing of a petition for reconsideration “[w]ithin fourteen
(14) days from the date of the award, order, or decision” of the ALJ.
Because Turpen did not file a petition for reconsideration as provided for in
KRS 342.281, the ALJ’s decision is conclusive and binding as to all questions
of fact.
In
the absence of a petition for
reconsideration, on questions of fact, the Board is limited
to a determination of whether there is any substantial
evidence in the record to support the ALJ’s conclusion. Stated otherwise,
where no petition for reconsideration was filed prior to the
Board’s review, 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 supporting the ALJ’s ultimate
conclusion. Eaton Axle Corp. v. Nally, 688 S.W.2d 334 (Ky. 1985); Halls
Hardwood Floor Co. v. Stapleton, 16 S.W.3d 327 (Ky. App. 2000). Thus, our task on appeal is to determine
whether the ALJ’s decision is supported by substantial evidence.
In his Independent Medical Evaluation report dated January 12, 2015, based
upon a physical examination and review of the medical records, Dr. Steven Wunder
opined as follows:
I do not believe that Mr. Turpen’s chronic low
back symptoms are a direct and proximate result of the August 27, 2010,
incident. I believe his symptoms would be due to the chronic low back pain that
dated back to 2005. This is well
documented in the records. This is further confirmed by Dr. Ballard. She did not think the need for his ongoing
care was related to the work accident on August 27, 2010. His current exam
showed a lot of exaggerated, inconsistent and non-organic findings. The
medication prescriptions are the same as what he was taking before August 27,
2010.
In her April 30, 2013, note, Dr.
Ellen Ballard indicates Turpen was seen for a “recheck” on April 30, 2013. Dr. Ballard noted Turpen had a history of
chronic low back pain. Turpen reported
that on August 27, 2010, he was lifting an 80-pound part out of a crate to hang
it on a paint line and had pain in his back and right leg. After reviewing various tests performed
subsequent to August 27, 2010, Dr. Ballard stated as follows:
His chronic low back pain pre-existed his work
injury. He came in today immediately demanding to be referred to Dr. Peters for
his chronic back problems. He was told that if his family doctor wanted to
refer him for narcotics to Dr. Peters that he could do that but he had been on
narcotics previously and that is office was not going to make the referral to
Dr. Peters.
Under “Plan,” Dr. Ballard stated:
He then walked out of the office without
further comment and without scheduling any other appointment. He did report he
lost his insurance so it is possible that he also is no longer able to get
medicine from his family doctor, but that medicine was obtained for his
previous chronic back problems.
APRN White’s March 30, 2015, letter
relied upon by the ALJ is set forth verbatim in our summary of the medical evidence.
During her June 22, 2015, deposition,
APRN White testified she had been employed by Norton Healthcare as a nurse
practitioner, and she is an advanced practice registered nurse (“APRN”). As an APRN she can prescribe medications
including narcotics. She first saw
Turpen on July 10, 2008, and has seen him since that time for chronic
conditions which she identified as high blood pressure, reflux, and chronic low
back pain. APRN White also treated his
diverticulosis. She indicated her role
is to maintain Turpen’s medications so he is able to function and perform his
daily activities. She prescribes Hydrocodone
to be taken every six hours to control his pain; Xanax for chronic anxiety; and
Prozac for chronic depression. ARPN
White testified Turpen’s chronic pain relates to his work-related back injury, and
Xanax and Prozac relate to his chronic pain.
Her referral to Dr. Lawrence Peters for pain management was not
authorized by Zoeller. In 2008, APRN
White prescribed medication for Turpen’s chronic low back pain and chronic
anxiety. At that time, she did not
prescribe any medication for depression.
She acknowledged she referred Turpen to Dr. Peters in 2008. Significantly, the following exchange took
place regarding APRN White’s March 30, 2015, letter:
Q: -- we can do that. On March 30 of 2015, you
authored a letter, which is now part of the record in this case, and the second
sentence of the letter was: “I see him every six months for his regular
check-ups and fill his pain medication monthly for his chronic back pain.”
A: Uh-huh.
Q: My question is whether your reference to
chronic back pain in this letter of March 30, 2015, is a reference back to the
same chronic low back pain which Mr. Turpen offered by way of history on July
10, 2008?
A: Yes.
. . .
RE-CROSS EXAMINATION:
Q: We have your July 10 of 2008, note, and the
first thing that is indicated here appears to be: “Would like to see Dr. Peters
for pain management.”
A: Yes.
Q: Did you make that referral back in 2008?
A: Yes.
Q: And then, if I’m reading correctly, the
meds, or the plan for meds – is that Zontac [sic]? Z-O-N-T-A-C?
A: Zantac.
Q: Zantac.
A: Uh-huh.
Q: And then Xanax 0.5?
A: Yes.
Q: And then finally Lortab 5/500.
A: Yes.
Q: I’m not sure the dosage or the daily –
A: One hundred and twenty pills, one every six
hours.
Q: And then there’s something written on a
fourth entry below. I can’t make that out.
A: Yes. “Return to office if no better.”
Q: And then finally, under assessment, would
just read aloud – not that we can’t read it –
A: Uh-huh.
Q: -- but could you read aloud what the
assessment was at the time?
A: Sure. “Chronic low back pain L5-S1
protrusion gird anxiety.”
The opinions expressed by Drs. Wunder
and Ballard, as well as APRN White’s statement in her March 30, 2015, letter
and her testimony set forth above constitute substantial evidence in support of the ALJ’s determination APRN White’s treatment and
Hydrocodone, Xanax, and Prozac are not causally related to the effects of
Turpen’s August 27, 2010, work injury.
Since the ALJ has the authority to pick and choose among the medical
evidence in the record, she was free to rely upon APRN White’s statement set
forth in her March 30, 2015, letter unequivocally establishing she was not
seeing Turpen for his workers’ compensation injury. Further, the ALJ may accept APRN White’s
statement contained within the March 30, 2015, letter while rejecting portions
of her deposition testimony.
In addition, assuming arguendo, Zoeller had the burden of
proof regarding causation, we believe it satisfied that burden based on the
opinions of Drs. Wunder and Ballard and APRN White’s March 30, 2015, letter and
portions of her deposition testimony.
Accordingly, since substantial evidence supports the ALJ’s determination
and the record does not compel a contrary result, the ALJ’s February 24, 2016, Medical
Fee Opinion and Order resolving the medical fee dispute in favor of Zoeller is AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON CHED JENNINGS
401 W MAIN ST STE 1910
LOUISVILLE KY 40202
COUNSEL
FOR RESPONDENT:
HON R CHRISTION HUTSON
P O BOX 995
PADUCAH KY 42002
ADMINISTRATIVE
LAW JUDGE:
HON JANE RICE WILLIAMS
217 S MAIN ST STE 10
LONDON KY 40741
