Workers’
Compensation Board
OPINION
ENTERED: June 10, 2016
CLAIM NO. 201200442
EXCEL MINING LLC PETITIONER
VS. APPEAL FROM HON. JANE
RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE
WOODY RATLIFF,
DR. AYESHA SIKDER,
HON. JANE RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
VACATING
IN PART
AND
REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. Excel Mining LLC (“Excel”) appeals from the
Medical Fee Opinion and Order rendered January 20, 2016 by Hon. Jane Rice
Williams, Administrative Law Judge (“ALJ”), resolving a medical dispute
partially in its favor by finding the request for pulmonary rehabilitation not
work-related, and therefore not compensable.
The ALJ additionally found prescriptions for inhalers were related to
Woody Ratliff’s (“Ratliff”) work-related disease and therefore
compensable. Excel also appeals from the
February 16, 2016 order denying its petition for reconsideration.
On appeal, Excel argues the evidence
of record establishes the contested inhalers are not for the treatment of coal
worker’s pneumoconiosis (“CWP”), but instead are for the treatment of unrelated
COPD. We vacate in part and remand for
the ALJ to make additional findings regarding the work-relatedness of the
contested inhalers.
Excel filed a Motion to Reopen, Form
112 Medical Fee Dispute and Motion to Join a Medical Provider on July 21, 2015
contesting the request for a referral to pulmonary rehabilitation by Dr. Ayesha
Sikder as not reasonable, necessary or related to Ratliff’s work injury. In support of the motion, Excel filed the
settlement agreement approved on April 11, 2014, by Hon. R. Roland Case,
Administrative Law Judge. The settlement
agreement reflects Ratliff contracted CWP due to coal dust inhalation with his
last date of exposure on April 17, 2011.
The agreement lists, “lungs/breathing” as the body parts affected. The agreement indicates two reports were
provided. On March 27, 2012, Dr. Michael
Alexander interpreted an x-ray as “2/1 O opacities” and on May 15, 2012, Dr.
Bruce Broudy interpreted an x-ray as “0/1 O opacities.” It also listed pulmonary function studies as,
“Dr. Potter: FVC: 59.4%, FEV1: 62.9%;
Dr. Sikder: FVC: 82%, FEV1: 81%; Dr. Broudy: FVC: 63%, FEV1: 63%.” The claim was settled based upon a compromise
of a 25% disability award, with Ratliff retaining his right to future medical
benefits.
Attached to the motion to reopen is
the June 11, 2015 letter by Dr. Sikder explaining pulmonary rehabilitation
consists of both physical exercise and self-management. Excel included the pulmonary rehabilitation notes
from May and June 2015.
Excel also attached the June 2, 2015
medical records review by Dr. Broudy and the June 20, 2015 utilization review
denial by Dr. Douglas Jenkins. Dr.
Broudy opined there is no evidence the requested pulmonary rehabilitation is
either related to the inhalation of coal mine dust or to a diagnosis of
CWP. He also stated the rehabilitation
is not indicated for cure or treatment of CWP or silicosis. Likewise, Dr. Jenkins opined the pulmonary
rehabilitation is not necessary or medically appropriate treatment, and stated
home exercise with outpatient monitoring would be an acceptable
alternative. Dr. Jenkins noted an
exercise program classically used in patients with COPD has uncertain, if any,
benefits in CWP. Neither report
addressed the contested inhalers.
In an order dated August 18, 2015, the
ALJ found Excel had made a prima facie
showing for reopening, joined Dr. Sikder as a party, and scheduled a telephonic
conference. Subsequently on October 15,
2015, Excel filed a second medical fee dispute contesting, “prescriptions for Advair, Incruse
Elptianh[sic] 62.5 mcg., Montelukast” as unrelated since they were “submitted
with a diagnosis code of COPD.”
Excel
filed the October 26, 2015 report of Dr. Broudy, who performed an evaluation at
its request. He had previously evaluated
Ratliff in August 2012. He noted Ratliff
worked in underground coal mining for thirty-three
years in several positions. Since his
last evaluation, Dr. Broudy noted Ratliff was found to have a carcinoid tumor
of the small intestine which was removed in March 2014. In October 2014, 70% of Ratliff’s liver was
removed.
Dr.
Broudy interpreted an x-ray taken the day of the evaluation, as film quality 1,
category 0/1 CWP. Dr. Broudy noted
Ratliff’s effort on spirometry was suboptimal.
He noted, “The vital capacity is 2.89 L 61% predicted and the FEV1 is
2.30 L 63% of predicted.”
Dr.
Broudy diagnosed Ratliff as having a restrictive ventilatory defect with less
than optimal effort on spirometry; obesity with abdominal protuberance; status
post removal of small intestinal carcinoid; and liver metastasis. Dr. Broudy opined the restrictive ventilatory
defect is due to a combination of obesity, less than optimal effort, and the
previous surgery which can cause weakness in the abdominal muscles resulting in
restrictive defect. Dr. Broudy stated
even assuming Ratliff has simple CWP, it requires no specific treatment,
including pulmonary rehabilitation. The primary
benefit of the rehabilitation program is muscle reconditioning which would be
good for any individual who has been incapacitated by surgery or some other
illness. However, Dr. Broudy emphasized
CWP was not the cause for the need of pulmonary rehabilitation or muscle
reconditioning. Dr. Broudy stated as
follows regarding the contested prescriptions:
In addition, I question the need for the bronchodilators which are
in the medications listed as Advair, Incruse, and Ventolin. Montelukast also is probably unnecessary as
it is given for asthma which is a type of reversible airways obstruction.
Finally,
Ratliff attached the treatment records from Dr. Sikder dated July 15, 2015 and
October 14, 2015. In the July 15, 2015
note, Dr. Sikder noted Ratliff has CWP and COPD, as well as his past surgeries
on his liver and small intestine. She
noted Ratliff has baseline dyspnea, minimal cough, and mild but improved
wheezing. Dr. Sikder noted past
pulmonary function tests all indicate moderate to severe COPD. After performing an examination, Dr. Sikder
provided the following assessments and treatment plans:
Assessments
1. COPD- 491.20 (Primary)
2. [CWP]- 500
3. Carcinoid syndrome-
259.2
4. ASTHMA (ALLERGIC)-
493.90
5. LUNG NODULE- 518.89, PMF
6. HISTORY OF TOBACCO
ABUSE- V15.82
7. HYPERTENSION- 401.9
Treatment
1. COPD
Continue Advair Diskus Aerosol Powder Breath Activated, 500-50
Mcg/Does, 1, Inhalation, every 12 hrs, 1,1, Refills 3
Continue Montelukast Sodium Tablet, 10 MG, 1 tablet in the
evening, Orally, Once a day, 30 day(s), 30, Refills 3
Continue INCRUSE ELLIPTA INHALATION, 62.5 MCG, one inhalation, PO,
Q Day, 30, 1, Refills 1
Notes: Has relief on Advair
500/50 and Incruse. He has no coverage
for Pulmonary rehab.
2.
[CWP]
Continue Ventolin HFA Aerosol Solution, 108 (90 Base) MCG/ACT, 2
puffs as needed, Inhalation, every 6 hrs prn, 1, 1, Refills 0
Notes: Has FEV1 dropped
from 70-38%.
3.
Carcinoid syndrome
Notes: S/p resection, no chemo or radiation, UK Gill cancer
center, CT 6/15 was clear.
4. ASTHMA
(ALLERGIC)
Notes:
Continue Advair.
5.
LUNG NODULE
Notes:
CT chest 3/15 stable.
6.
HISTORY OF TOBACCO ABUSE
Notes:
Has quit many years.
7.
HYPERTENSION
NOTES: Controlled.
On
October 14, 2015, Ratliff was seen by Jaclyn Little, APRN. Dr. Sikder indicated she reviewed the medical
note and electronically signed it.
Ratliff was noted with having no change of his dyspnea, occasional
cough, and minimal wheezing. After an
examination, the following assessments and treatment plans were noted:
Assessments
1. [CWP] – J60 (Primary)
2. FLU VAC – Z23
3. Other disorders of lung – J98.4
4. Personal history of nicotine dependence –
Z87.891
5. Essential (primary) hypertension – I10
6. Unspecified asthma, uncomplicated – J45.909
7. Chronic obstructive pulmonary disease,
unspecified, J44.9
Treatment
1. [CWP]
Refill Advair Diskus Aerosol Powder Breath Activated, 500-50
MCG/Dose, 1 puff, Inhalation, Twice a day, 30 days, 1, Refills 2
Refill INCRUSE ELLIPTA INHALATION, 62.5 MCG, one inhalation, PO, Q
Day, 30, 1, Refills 2
Refill Montelukast Sodium Tablet, 10 MG, 1 tablet in the evening,
Orally, Once a day, 30 day(s), 30, Refills 2
Refill Ventolin HFA Aerosol Solution, 108 (90 Base) MCG/ACT, 2
puffs as needed, Inhalation, every 4 hrs prn dyspnea, 30 days, 1, Refills 2
Notes: SEEN BY JACLYN LITTLE APRN.
REVIEWED BY DR. SIKDER.
Pt. has CWP and COPD for long term occupational exposure and
tobacco use
2. Other
disorders of lung
Notes: Has CT chest
scheduled 11/15 at UK.
3. Personal
history of nicotine dependence
Notes: quit 25 years ago.
4. Essential
(primary) hypertension
Notes: controlled.
5. Unspecified
asthma, uncomplicated
Notes: continued on Advair.
6. Chronic
obstructive pulmonary disease, unspecified
Notes: better on Advair and
Incruse.
Ratliff
testified at the hearing held December 17, 2015. At the time of the hearing, Ratliff was
sixty-five years old and had not smoked cigarettes for over twenty years. He worked as an underground coal miner for
thirty-three years, of which he operated a continuous miner for fifteen years. He last worked in April 2011. Ratliff confirmed he recently underwent
treatment for cancer resulting in two surgeries in 2014.
Dr.
Sikder has treated Ratliff’s breathing problems since 2010. She was not involved in his treatment or
recuperation after his 2014 surgeries.
Ratliff settled his state black lung case in April 2014 and did not
waive his right to future medical benefits.
Ratliff was not sent to a university evaluator prior to the
settlement. Since the settlement,
Excel’s worker’s compensation insurance insurer has paid for the medical
treatment related to his breathing, including inhalers, until August 2015. Since then, his breathing has worsened.
When
the insurer was paying for Ratliff’s treatment, he was prescribed Advair,
Ventolin, and Incruse, which he indicated helped his breathing. Ratliff wishes for his breathing medication
to be paid for, and he believes they are necessary. Although Ratliff is interested in the
recommended pulmonary rehabilitation, he is more concerned with obtaining his
medications. Since his most recent visit
with Dr. Sikder in October 2015, Ratliff stated his cough has worsened.
The
November 17, 2015 Benefit Review Conference Order notes the issues to be
determined were the work-relatedness of the pulmonary rehabilitation request
and the prescriptions for inhalers.
In
the January 20, 2016 Opinion and Order, the ALJ provided a short
summary of Ratliff’s testimony, the reports from Drs. Broudy and Jenkins, and
the March 27, 2017 report of Dr. Alexander.
The ALJ provided the following summary of Dr. Sikder’s records:
“Plaintiff introduced the June 11, 2015 letter of Dr. Sikder who diagnosed COPD
and CWP. She explained the pulmonary
rehabilitation program to increase strength and muscle mass. Treatment notes have also been
provided.”
After noting Ratliff maintains the burden
of proving the contested medical treatment is causally related treatment for
the effects of his or her work-related injury, the ALJ provided the following
analysis:
In the specific instance, Defendant Employer
has moved to reopen this claim to challenge the work relatedness of pulmonary
rehabilitation and inhalers. The report
of Dr. Sikder, coupled with the report of Dr. Alexander, is persuasive that
Plaintiff is entitled to the inhalers as related to the work injury. The pulmonary rehab, however, appears related
to strengthening for a post-surgical condition and general lack of
conditioning. Therefore, the rehab is
not work related, and found non-compensable.
As a result, the ALJ resolved the medical
fee dispute challenging the work-relatedness of the pulmonary rehabilitation in
favor of Excel, and the medical expenses for inhalers in favor of Ratliff.
Excel filed a petition for reconsideration,
requesting the ALJ reconsider her decision, “finding the employer responsible
for the contested payments of inhalers which Dr. Sikder prescribed for COPD up
until a recent visit when she changed her electronic notes to show the inhalers
under a treatment for CWP.” Excel first
asserted Ratliff only had simple CWP, which does not require treatment. Excel also pointed to Drs. Broudy’s and
Jenkins’ opinions. In denying the petition,
the ALJ stated as follows:
. . . . The a [sic] review of the record shows that although
Defendant Employer argues Plaintiff’s condition is simple CWP with no needed
treatment, the claim was settled prior to a university evaluation and prior to
a finding of simple CWP. As noted in the
opinion, Ratliff is 65 years old and worked as an underground coal miner for 33
years and has not smoked in more than 20 years.
The ALJ relied upon the report of Dr. Sikder who diagnosed COPD and CWP
and explained the pulmonary rehabilitation program increases strength and
muscle mass. Also relied upon was the
March 27, 2012 report of Michael S. Alexander, M.D., who diagnosed CWP category
2/1. Plaintiff has found the treatment
with inhalers beneficial and this treatment has been paid by the employer since
the April 11, 2014 settlement. Nothing
in the Petition for Reconsideration compels a different outcome.
On appeal, Excel argues the ALJ’s analysis
regarding the inhaler prescriptions, specifically Advair, Incruse and
Montelukast, is not based upon medical evidence addressing its work-relatedness
to Ratliff’s CWP. The March 27, 2012
report of Dr. Alexander provides only an x-ray interpretation, and does not
address medical treatment for CWP. The
June 11, 2015 letter from Dr. Sikder referenced by the ALJ only addresses the
pulmonary rehabilitation program, and does not address CWP or treatment of the
condition with use of the contested inhalers.
Even though not addressed by the ALJ, Excel
argues the July
15, 2015 and October 14, 2015 treatment notes of Dr. Sikder do not
expressly state the inhalers are for the treatment of CWP. Excel also points to the October 26, 2015 report of Dr.
Broudy, in which he questioned the need of the contested inhalers. Excel argues Ratliff failed to prove the
contested inhalers are for treatment of CWP rather than his COPD, and requests
this Board to reverse the decision of the ALJ finding it responsible for
payment of the inhalers.
Notwithstanding
the holding in C & T Hazard v.
Chantella Stollings, et al.,
2012-SC-000834-WC, 2013 WL 5777077 (Ky. 2013), an unpublished case from the
Kentucky Supreme Court, a long line of reported decisions establish in a post-award
medical fee dispute, the employer bears both the burden of
going forward and the burden of proving entitlement to the relief sought,
except that the claimant bears the burden of proving work-relatedness. National
Pizza Company vs. Curry, 802 S.W.2d 949 (Ky. 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). Since Ratliff was successful in
his burden in proving the contested inhalers are related to his CWP, the
question on appeal is whether there was substantial evidence of record to
support the ALJ’s decision. Wolf
Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). “Substantial evidence” is
defined as evidence of relevant consequence having the fitness to induce
conviction in the minds of reasonable persons.
Smyzer v. B. F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky.
1971).
KRS 342.285 designates the ALJ as the finder
of fact, and as such she is granted the sole discretion in determining the
quality, character, and substance of evidence.
Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). Likewise, the ALJ, as fact-finder, may choose
whom and what to believe and, in doing so, may reject any testimony and believe
or disbelieve various parts of the evidence, regardless of whether it comes
from the same witness or the same party’s total proof. Caudill v. Maloney’s
Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977); Pruitt v. Bugg Brothers,
547 S.W.2d 123 (Ky. 1977).
However,
such discretion is not unfettered. In reaching her determination, the ALJ must also provide findings sufficient
to inform the parties of the basis for her decision to allow for meaningful
review. Kentland Elkhorn Coal Corp.
v. Yates, 743 S.W.2d 47 (Ky. App. 1988); Shields v. Pittsburgh and
Midway Coal Mining Co., 634 S.W.2d 440 (Ky. App. 1982); Big Sandy
Community Action Program v. Chafins, 502 S.W.2d 526 (Ky. 1973).
In support of her finding the
contested inhalers are work-related, the ALJ stated, “[t]he
report of Dr. Sikder, coupled with the report of Dr. Alexander, is persuasive
that Plaintiff is entitled to the inhalers as related to the work injury.” In the order on reconsideration, the ALJ
reiterated her reliance upon, “the report of Dr. Sikder who diagnosed COPD and
CWP and explained the pulmonary rehabilitation program increases strength and
muscle mass” and on the March 27, 2012 report of Dr. Alexander, who diagnosed
CWP category 2/1. In addition, the ALJ
cited to Ratliff’s testimony indicating the inhalers have been helpful and paid
for by Excel since the settlement.
In the March 27, 2012 report, Dr. Alexander
merely provides an interpretation of an x-ray, 2/1 for CWP. The report does not address treatment,
specifically the contested inhalers and whether they are related to the CWP
diagnosis. Further, in the opinion, the
ALJ does not specify which record of Dr. Sikder she relied upon in finding the
inhalers work-related. The June 11, 2015
letter and accompanying notes only address the pulmonary rehabilitation, which
is not an issue on appeal. The remaining
treatment notes from July 15, 2015 and October 14, 2015 are conflicting on this
issue. In the July 15, 2015 note, Dr.
Sikder diagnosed COPD and recommended Advair, Montelukast, and Incruse. She also diagnosed CWP, and recommended
continuing Ventolin. However, in the
October 14, 2015 note, Dr. Sikder diagnosed CWP, and recommended Advair,
Incruse, Montelukast, and Ventolin. The
ALJ did not provide any additional analysis with the exception of citing
Ratliff’s testimony establishing the inhalers helped his breathing problems in
the Order on petition for reconsideration.
Therefore,
we vacate in part and remand for the ALJ to identify the specific medical
evidence she relied upon in determining the contested inhalers are related to
Ratliff’s work injury in light of the conflicting treatment records of Dr.
Sikder, the lack of relevance of Dr. Sikder’s June 11, 2015 letter, and the
mere x-ray interpretation of Dr. Alexander.
The ALJ must identify with specificity what evidence she relied upon in
reaching her ultimate determination.
Accordingly,
the January 20, 2016 Opinion and Order and the February
16, 2016 Order on petition for reconsideration by Hon. Jane Rice Williams,
Administrative Law Judge, are hereby VACATED
IN PART and REMANDED for additional findings and entry of an amended decision consistent
with the views expressed herein.
RECHTER,
MEMBER, CONCURS.
STIVERS, MEMBER, DISSENTS AND WILL NOT FURNISH A SEPARATE
OPINION.
COUNSEL
FOR PETITIONER:
HON TERRI SMITH WALTERS
PO BOX 1167
PIKEVILLE, KY 41502
COUNSEL
FOR RESPONDENT WOODY RATLIFF:
HON THOMAS W MOAK
PO BOX 510
PRESTONSBURG, KY 41653
RESPONDENT:
DR AYESHA SIKDER
5230 KY ROUTE 321, STE 4
PRESTONSBURG, KY 41653
ADMINISTRATIVE
LAW JUDGE:
HON JANE RICE WILLIAMS
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601