*/
Workers’
Compensation Board
OPINION
ENTERED: July 1, 2016
CLAIM NO. 200567102
DOLLAR GENERAL CORPORATION PETITIONER
VS. APPEAL FROM HON. JANE
RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE
CHRISTOPHER MOORE
DR. JAMES FARRAGE, JR.
and HON. JANE RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Dollar General Corporation (“Dollar General”) appeals from the February 3,
2016, Medical Fee Opinion and Order of Hon. Jane Rice Williams, Administrative
Law Judge (“ALJ”) determining pain management, quarterly office visits, and prescriptions
Hydrocodone, Acetaminophen, Tramadol HCL50, and Tramadol HCL 300 are reasonable
and necessary treatment of and related to Christopher Moore’s (“Moore”) work-related
injury. The ALJ also determined Moore
had not failed to follow medical advice.
Thus, Dollar General remained responsible for the ongoing treatment of Dr.
James Farrage. Dollar General also
appeals from the March 9, 2016, Order denying its petition for reconsideration.
On December 5, 2005, Hon. Sheila Lowther, Administrative
Law Judge (“ALJ Lowther”) approved a Form 110 Agreement as to Compensation. The agreement states Moore was injured on
November 1, 2004, when a heavy box struck his left knee and Moore underwent
left knee arthroscopy debridement of medial plaque and condroplasty of the
patella. Dr. Gregg Malmquist assessed a
5% impairment rating. As a result, Moore
received $9,000.00 in a lump sum settlement.
Moore waived his right to vocational rehabilitation but did not waive
his right to future medical benefits.
The record also contains a Form 110 Agreement as to
Compensation approved by Hon. J. Landon Overfield, Administrative Law Judge
(“ALJ Overfield”) on December 20, 2010, providing much of the same information
contained in the Form 110 approved by ALJ Lowther. However, it also notes Moore underwent
multiple surgeries to his left knee.
Further, in 2010 Dr. Malmquist and Dr. David Gaw assessed 5% impairment
ratings. The agreement states the matter
was before ALJ Overfield on a motion to reopen for alleged worsening of
impairment and temporary total disability (“TTD”)
benefits, and the parties agreed there was no worsening of
impairment. The parties also agreed to
the amount of TTD benefits which Dollar General had paid. Dollar General settled for a lump sum of $975.21
of which $109.84 was for interest due on past due TTD benefits and $865.37 in
costs. Moore agreed that all costs
incurred including Dr. Gaw’s independent medical evaluation (“IME”) fee and the
attorney’s fee were either waived or would be his responsibility.
On October 12, 2015, Dollar General filed a motion to
reopen. It stated that since 2010,
Moore’s medical treatment consisted of visits to the doctor’s office for
evaluation and refill of prescription pain medication. Moore had taken Hydrocodone, Acetaminophen,
Tramadol HCL, and Tramadol HCL ER since 2013 in escalating dosages. Dollar General asserted in spite of upward
titration of these narcotics, Moore had reported no improvement in his pain. In fact, in 2015, Moore reported an average
pain level higher than reported in 2013 when he was first treated by his
current physician, Dr. Farrage. Dollar
General asserted it was apparent Moore’s ongoing pain management regimen was
unproductive, and the evidence suggested an unhealthy dependency on this
treatment. Therefore, the treatment was
not reasonable and necessary for the cure and/or relief of the work injury and Dollar
General requested to be relieved from the liability. Dollar General attached the utilization
review (“UR”) report of Drs. Jamie Lee Lewis and William Mazzella upholding the
original denial by Dr. Heidi Klingbeil.[1]
In addition, Dollar General stated it
was contesting liability for ongoing pain management on the grounds of
causation, arguing Moore’s knee symptoms are more likely due to the significant
stresses placed on the knee by his martial arts activities than by the 2004
work-related injury. Dollar General
contested liability for ongoing benefits based on Moore’s unreasonable failure
to follow the medical advice, specifically the restrictions recommended by Dr.
Malmquist. Dollar General asserted the
martial arts in which Moore engaged were physically demanding and beyond the
physical restrictions contemplated by his treating orthopedic surgeon, Dr.
Malmquist. Therefore, it submitted it
“should not be liable for [Moore’s] continued use of narcotic medication,
including the risks attendant to said treatment over a protracted period of
time, to enable such activity.”
Dollar General also pointed out that Moore’s
treating orthopedic surgeon indicated, at the time of discharge, he should be
weaned from narcotics, and the first pain management physician Moore saw also
expressed reservations about long-term narcotics use. Therefore, Dollar General submitted a weaning
program was in Moore’s best interest.
Dollar General filed a motion to join Dr. Farrage as a
party and a Form 112 medical fee dispute.
Attached to the Form 112 is the affidavit of Dollar General’s
attorney. The affidavit states Moore
initiated pain management with an evaluation on June 28, 2011, by Dr. Jeffry
Hazlewood who expressed some concern over the long-term use of opioids. The affidavit cites to portions of Dr.
Hazlewood’s report which was attached.
The affidavit notes that due to compliance issues, Dr. Hazlewood advised
in August 2011 he was not comfortable with prescribing narcotics. Moore did not return to Dr. Hazlewood but
came under the care of Dr. Farrage on July 19, 2012.
The affidavit notes Dr. Farrage
changed Moore’s medication regimen which was Hydrocodone/Acetaminophen 7.5-325
per day. Beginning in late 2012, Dr.
Farrage prescribed one Hydrocodone/Acetaminophen 7.5-325 per day and four
Tramadol HCL 50 mg per day. After five
months, Moore’s Tramadol HCL 50 mg was increased to six per day. Beginning in
March 2014, his Tramadol prescription was changed to two Tramadol HCL 50 mg per
day and one Tramadol HCL ER 300 mg per day.
The affidavit represented Moore’s medication for 2013 through 2015 was
as follows:
2013:
270 Hydrocodone 7.5-325 tablets
73,800 mg Tramadol (total combined dose
of Tramadol 50 mg and Tramadol ER 300 mg)
2014:
340 Hydrocodone 7.5-325 tablets
134,500 mg Tramadol (total combined
dose of Tramadol 50 mg and Tramadol ER 300 mg)
2015:
378 Hydrocodone 7.5-325 tablets YTD
through 10/9/15
(489 per year, extrapolating through
end of 2015)
118,877 mg Tramadol total combined dose
YTD through 10/2/15
(143,247.5 total combined dose per
year, extrapolating through end of 2015)
The affidavit asserts Moore took more
of both medications in 2014 than he did in 2013 and had already taken more
Hydrocodone in 2015 than he took through the end of 2014. Dollar General represented that notwithstanding
this increased dosage of pain medication, Moore reported worse pain on average
than he did when he first started treatment with Dr. Farrage. The affidavit asserts the following values
were taken from the “Brief Pain Inventory” Moore completed in 2013 through
2015:
|
12/12/13 |
Worst Pain: 6 |
Least Pain: 1 |
Average Pain: 2 |
General Activ. Interference:1 |
|
6/12/14 |
Worst Pain: 7 |
Least Pain: 2 |
Average Pain: 5 |
General Activ. Interference:2 |
|
8/28/14 |
Worst Pain: 7 |
Least Pain: 3 |
Average Pain: 5 |
General Activ. Interference:5 |
|
4/30/15 |
Worst Pain: 5 |
Least Pain: 2 |
Average Pain: 3 |
General Activ. Interference:2 |
The affidavit also asserted a social media search provided
evidence indicating Moore is active in martial arts and posted photographs in
January 2015 where he was kneeling on the floor and holding a certificate
demonstrating his advancement in the program. It represented it was apparent
Moore practiced the art of Hapkido. The
affidavit provided a Wikipedia description of Hapkido. The affidavit concluded by noting when Moore
was released by his orthopedic surgeon, he was assigned permanent restrictions
which included no lifting over thirty pounds, limited climbing on ladders,
ramps, and inclined steps, and limited standing.
Also attached to the medical fee dispute is the September
22, 2015, UR report of Drs. Lewis and Mazzalla who were asked to address
whether the prescribed Tramadol HCL ER 50 mg and Hydrocodone 7.5 mg were
medically necessary and appropriate.
Both physicians’ answered “no” opining as follows:
In this case, the most recent
evaluation provided is 4-5 months old and thus, it is not indicated what the
patient’s current benefit (if any) is with use of opioids, including tramadol
HCL ER, tramadol HCL and hydrocodone. Additionally, the current functional
status is not identified. Lastly, a recent UDS is not provided to identify
compliance. It is noted on progress note dated 08/08/11, that the patient’s UDS
on 06/28/11 was positive for hydrocodone, Fentanyl, and negative for Xanax,
which the patient had stated he may have taken some of his wife’s and used
patches he reports his father gave to him. Ongoing use was not recommended at
this time. Thus, ongoing use of opioids is not supported in this case and
tramadol HCL ER is non-certified.
Also attached were the May 23, 2010, restrictions
from Dr. Malmquist and the New Patient Evaluation dated July 19, 2012, of Dr.
Farrage as well as Moore’s answers to Brief Pain Inventories dated December 12,
2013, June 12, 2014, August 28, 2014, and April 30, 2015. A document styled “Claim Transaction History”
was attached listing the medications prescribed from April 16, 2010, through
August 9, 2015. Dollar General also
attached a printout of what Moore posted on social media regarding his martial
arts training.
The June 28, 2011, Initial Evaluation of Dr. Hazlewood was also
attached. Dr. Hazlewood provided his
finding and expressed opinions regarding Moore’s permanent knee problems and
the need for continued opioid use. He
also suggested a course of pain management.
Dr. Hazlewood noted a urine drug screen specimen was obtained. After Moore was sent for the drug screen, he
admitted taking his wife’s Xanax tablets.
Dr. Hazlewood felt this would not be a good situation, and Moore needed significant
counseling on this as well to avoid other people’s medications. Finally, he noted the testing came back for
Benzodiazepine and opioids appropriately.
On October 14, 2015, Dollar General
filed the June 28, 2011, report of Dr. Hazlewood, the report providing the results
of the drug screen, and the August 8, 2011, note of Dr. Hazlewood. In the August 8, 2011, report, Dr. Hazlewood
stated he was documenting significant problems with the results of the drug
screen again noting Moore told him he had recently taken his wife’s Xanax. Dr. Hazlewood stated the test came back positive
for Hydrocodone, but was also positive for Fentanyl which is the trade name for
Duragesic. Dr. Hazlewood stated this was
a significantly potent schedule II opioid.
The test for Xanax was negative. When
he asked Moore about the Fentanyl, Moore stated he had used some patches given
to him by his father and was unsure of the name of the patches. Dr. Hazlewood stated this was a significant
problem, and in his opinion, he would not be able to justify continued opioids
as the risks outweigh the benefits given this type of behavior and lack of
subjective reliability in the history taking.
Moore denied any addiction problem.
In an Order dated November 16, 2015, the ALJ found Dollar
General had made a prima facie
showing for reopening and sustained the motion to reopen and joined Dr. Farrage
as a party.
The November 30, 2015, Scheduling Order reveals the medical
dispute concerned the following: prescription medications
Hydrocodone/Acetaminophen, Tramadol HCL (50), and Tramadol HCL (300), quarterly
office visits, and ongoing pain management.
The basis of the challenge was reasonableness/necessity and
causation/work-relatedness.
Moore submitted Dr. Farrage’s answers to a questionnaire in
which he indicated he had reviewed the medical fee dispute. In response to the question: “Is the subject
treatment recommended by you reasonable, medically necessary and related to
11/1/204 work injury,” Dr. Farrage answered “yes.” Additionally, Dr. Farrage was asked to list
the medications and treatment he expected to be necessary for Moore’s injuries
with the understanding modifications may be needed as his condition changes. Dr. Farrage responded as follows:
Mr. Christopher Moore is currently on a
medication regimen consisting of tramadol ER with availability of tramadol and
lortab for breakthrough pain. This is in addition to conservative measures
including orthosis use, tailored HEP, thermal modalities and desensitization
techniques. Efforts have been successful in reducing the previously required
high (6X/d) dose hydrocodone use significantly as recommended with transition
to a non-opioid derived centrally acting analgesic agent. There have been no
issues with patient compliance, evidence of addiction, or diversion. He has
been gainfully employed on a full-time basis and is able to enjoy some
avocational activities once again. There are no plans for additional surgical
intervention at this time. He is followed regularly in the clinic for
adjustments to his regimen with goal of further reducing reliance upon
scheduled medications. Prescription monitoring process and urine drug screens
are also accomplished regularly. The current care plan has been effective in
substantially improving the patients [sic] quality of life and is considered
medically necessary with regards to management of the reported work injury on
11/1/2004.
Dollar General introduced the IME report of Dr. Calvin R.
Dyer generated as a result of an examination on November 16, 2015. Based on the history of Moore’s problems, his review of the x-rays he obtained, and his
physical examination, Dr. Dyer stated Moore’s anterior knee pain did not
require pain management or opioid medication.
He believed the medications were somewhat counter-productive because
without full feeling and no appropriate sensation in his knee, Moore may engage
in activities which can aggravate his knee.
An exercise program may be warranted to continue strengthening of the
quadriceps muscle. Because of Moore’s
subjective complaints and inconsistent movement abnormalities of the knee, Dr.
Dyer could not offer a rating related to the range of motion of the left
knee. He noted chondral changes in the
patellofemoral joint remain mild because there is still excellent joint space
preserved more than eleven years after the injury. Moore did not have an effusion which would
suggest any type of acute abnormalities.
Dr. Dyer believed Moore may require a medically supervised
decrease of his pain medication. Based
on his medical records review, he believed Moore had an addictive complication
on top of his routine pain management.
Dr. Dyer did not believe Moore’s knee warranted further treatment;
however, he acknowledged he did not have a good handle on Moore’s function
because his subjective complaints and examination were unusual for this type of
condition.
Dr. Dyer believed the pain management
practices of Dr. Farrage did not appear to be standard care. Although Tramadol and Hydrocodone may allow
Moore to function at a higher level, it may cause further damage because of his
body’s inability to perceive pain accurately while on these medications. Significantly, Dr. Dyer stated he did not
have any reason to suggest any of Moore’s ongoing problems or dysfunction in
the left knee are related to martial arts activities. He believed Moore had minimal dysfunction of
the left knee related to his injury. Dr.
Dyer suggested non-steroidal anti-inflammatories for intermittent pain, light
exercises, and general fitness.
Dollar General filed information obtained from the National
Institutes of Health/U.S. National Library of Medicine regarding Tramadol and
Hydrocodone.
Dollar General filed the December 31, 2015, medical records
review report of Dr. Hazlewood. That
report reflects Dr. Hazlewood reviewed the records of Dollar General’s attorney,
his records dated June 28, 2011, and August 8, 2011, the report of Dr. Dyer,
records from Dr. Farrage, the UR report of Dr. Klingbeil, records from Dr.
Spindler, records from Dr. Malmquist, and the Functional Capacity Evaluation
(“FCE”) report of April 13, 2010. Dr.
Hazlewood’s impression was:
1. Chronic left knee pain with
histories of multiple surgeries.
2. Chronic opioid dependency with
multiple aberrant behaviors documented.
Dr. Hazlewood again referenced the
fact Moore had taken Xanax provided by his wife and a Fentanyl patch. He noted Moore later admitted to Dr. Farrage
he had taken a co-worker’s prescription medication after running out of his
own. He concluded there were multiple
aberrant behaviors present and a strong suggestion of the possibly of addiction
to chronic opioids; at a minimum, there was a definite misuse and abuse of
medications as well as illegally taking other person’s prescription medications
on several occasions.
As to whether Moore’s current medication
regimen was reasonable and necessary treatment for the cure and relief of his
2004 work injury, Dr. Hazlewood stated the “subjective symptoms in this case
far outweigh objective findings per the orthopedic surgeon as well as other
evaluations in the past.” He stated
Moore appeared to be much more functional than he was willing to state and was
able to do much more with his pain than he admits in light of the social media
information. He did not believe the
medications Moore was taking would “deaden the pain enough” to allow him to
perform martial arts activities. Therefore,
he believed Moore’s subjective reports of pain far outweigh what appears to be
painful based on objective information.
Dr. Hazlewood stated there are no well-done studies supporting long term
usage of chronic opioids for non-malignant pain.
Dr. Hazlewood stated Dr. Farrage
incorrectly stated Tramadol is not an opioid, as it is a synthetic opioid and
has been scheduled for over a year or two by the DEA as a potentially addictive
opioid medication/controlled substance.
He believed the notes of Dr. Farrage indicate Moore’s pain is gradually
increasing despite his use of opioids.[2] Dr. Hazlewood was most concerned by Moore
illegally obtaining controlled substances from other persons and eluded to the
three occasions concerning the receipt of Xanax from his wife, the Fentanyl
patch received from his father, and his statement to Dr. Farrage that he took a
co-worker’s pain medication since he had run out. He believed Moore had a high risk of being
found either unconscious or dead secondary to misuse or abuse of opioids. He stated Moore’s risk for unintentional
death was extremely high given his aberrant behavior as previously
outlined. Dr. Hazlewood stated there was
no way he could agree with the continued opioid management; however, basic
anti-inflammatory use is indicated with maybe an occasional steroid injection
for significant pain flare ups.
Dr. Hazlewood could not determine whether pill counts were
being performed, and believed there was no objective documentation of
significant pathology on examinations or documentation of significant
functional improvement with the medications.
It also appeared Dr. Farrage had rarely obtained urine drug screens. Dr. Hazlewood concluded Dr. Farrage was not
following the best pain management practices.
In light of Moore’s surprisingly high level of physical
functioning, as indicated in his social media post, Dr. Hazlewood believed Moore
should be weaned from “opioids and opioid agonist” over a four week period. Dr. Hazlewood felt it was very unusual for
someone to be on two different short-acting opioids. Further, there was no reason to be on these
two opioids and one long-acting opioid. Dr.
Hazlewood did not recommend any pain management or other type of medical
treatment related to the injury. He
would only recommend over-the-counter Advil, Motrin, or Tylenol as needed and a
self-directed home exercise program.
The January 5, 2016, “BRC Order in Medical Fee Dispute,”
reflects the contested issues were the same as set out in the Scheduling
Order.
In her February 3, 2015, decision resolving the medical fee
dispute in favor of Moore and Dr. Farrage, the ALJ provided the following
findings of fact and conclusions of law:
. . .
Defendant Employer introduced the June 28, 2011
report of Jeffrey E. Hazlewood, M.D., who conducted an independent medical
evaluation (IME) by taking a history from Plaintiff, reviewing medical records
and conducting a physical examination. Dr. Hazlewood noted the history of
Plaintiff's fall at work while lifting.
He struck his left kneecap and has had ongoing pain. Since the injury, he had undergone three
different surgeries and Plaintiff thought he may need knee replacement at some
point. At the time of IME, he was
treating with his physician every four months.
Dr. Hazlewood’s assessment was chronic left knee pain with three
different surgeries, continued pain, as there is legitimate, and possible
development of osteoarthritis in the knee joint. He also noted knee dysfunction related to
this diagnosis and chronic opioid dependency with low risk for addiction. He did not see signs of misuse or abuse. Dr. Hazlewood did not find Plaintiff to be a
surgical candidate, but was concerned with his opioid use and wanted to help
him maintain a low dose. He recommended
random urine drug screens with a signed narcotic agreement and consideration
for use of Lidoderm patches. On the day
of his evaluation, the urine drug screen was positive for Hydrocodone and Fentanyl.
Dr. Hazelwood reviewed additional records which he
discussed in a December 31, 2015 report.
Again he noted Moore is not a surgical candidate and the risk of opioid
abuse outweighs the benefit. He
disagrees with continued opioid use and believes Moore should be weaned from
his medication. He noted illegal
activity and the high risk of continued use.
He could benefit from injections but only if they provided relief. He should take only over-the-counter
medications such as Advil and continue a home exercise program.
Defendant Employer introduced a September 22, 2015
medical records review and determination by Jamie L Lewis, M.D., and William
Mazzella, M.D. The records indicated
continued complaints of pain in the left knee.
The review determination found Tramadol HCL ER and Tramadol HCL (50),
should not be approved for use, as the records did not adequately document
benefit from use of these drugs.
Furthermore, the record indicated some possible, occasional use of
medications prescribed to a family member.
Hydrocodone was also not recommended for certification based on the same
analysis.
Defendant employer introduced drug profiles from the
Internet published by the US National Institutes of Health and Drug Importunate
Agencies.
Defendant Employer introduced the November 16, 2015
report of Calvin R. Dyer, M.D., who conducted an IME by taking a history from
Plaintiff, reviewing medical records and conducting a physical
examination. He found Plaintiff ambulating
without assistance. He did not have
records of the initial fracture and he did not believe further surgical
intervention would be warranted. Because
of subjective complaints and movement abnormalities of the knee which Dr. Dyer
found inconsistent, he could not provide an impairment rating. However, Dr. Dyer recommended decreasing the
opioid intake in a supervised manner.
The current medication regimen he did not find to be reasonable,
necessary or related to the work injury 2004.
He found the practice of Dr. Farrage to continue prescribing narcotics
was not standard practice and he also noted Plaintiff's involvement in martial
arts, but did not have any reason to suggest that any of his ongoing problems
or dysfunction would be related to those activities. Dr. Dyer recommended nonsteroidal
anti-inflammatory's for intermittent pain, light exercise and general fitness.
Plaintiff introduced a December 17, 2015 letter from
Dr. Farrage, where he checked the box indicating that the contested treatment
was medically reasonable and necessary and related to the 2004 work
injury. He further noted the ongoing
practices in place including a reduction in medication:
Mr. Christopher Moore is currently on a medication regimen
consisting of Tramadol ER, with availability of Tramadol and Lortab for breakthrough
pain. This is in addition to conservative measures including orthosis use,
tailored HEP, thermal modalities and desensitization techniques. Efforts have
been successful in reducing the previously required high (6X/day) dose
hydrocodone use significantly as recommended with transition to a non-opioid
derived centrally acting analgesic agent. There have been no issues with
patient compliance, evidence of addiction or diversion. He has been gainfully
employed on a full-time basis and is able to enjoy some vocational activities
once again. There are no plans for additional surgical intervention at this
time. He is followed regularly in the clinic for adjustments to his regimen
with goals of further reducing reliance upon scheduled medications. Prescription
monitoring process and urine drug screens are also accomplished regularly. The
current care plan has been effective in substantially improving the patient's
quality of life and is considered medically necessary with regards to
management of the reported work injury on November 1, 2004.
. . .
In the dispute herein, Defendant Employer has
challenged work relatedness, reasonableness and necessity of ongoing pain
management, quarterly office visits, prescriptions for
Hydrocodone/Acetaminophen, Tramadol HCL (50) and Tramadol HCL (300), as well as
failure to follow medical advice. After
review of the medical evidence, the ALJ is persuaded that the ongoing treatment
with Dr. Farrage is reasonable, necessary and work related. Regarding
medications, as counsel will recall from the telephone conference, the ALJ does
not have a medical or pharmaceutical degree and chooses to rely on medical
opinions rather than medication printouts.
Dr. Farrage has cut down the dosage and Plaintiff is being weaned to a
lesser amount. The ultimate decision on
just how much medication and which medications to prescribe will be left up to
Dr. Farrage, as long as the guidelines for prescribing and drug testing are
followed. The claim of failure to follow
medical advice appears to be related to Plaintiff’s active lifestyle. Normally, carriers complain of
inactivity. Here, Plaintiff continues to
work and participate in martial arts.
Defendant Employer’s IME physician specifically stated this activity was
not a problem for Plaintiff.
Certainly Plaintiff’s ultimate goals
should include being drug free. This
does not always happen. At this point,
while there are active efforts to decrease medications, the ALJ is persuaded
that the ongoing treatment by Dr. Farrage is work related, reasonable and
necessary and therefore, compensable.
Dollar General
filed a petition for reconsideration asserting the ALJ’s finding Dr. Farrage reduced
the dosage and Moore is being weaned to a smaller dosage with active efforts to
decrease medications was presumably based upon Dr. Farrage’s letter. However, it contended this finding is
contrary to Dr. Farrage’s actual medical chart and Moore’s prescription
transaction history which were not referenced in the ALJ’s opinion.
In the March 9, 2016,
Order overruling the petition for reconsideration, the ALJ stated as follows:
After review of Defendant
Employer’s argument, review of the opinion and a review of the record, the
ALJ’s opinion is based on reliance on the most recent statement of Dr. Farrage
in the record, dated December 17, 2015, where he states Plaintiff is compliant
and doing well on the current regimen, a reduction from a prior dosage. Nothing in this review leads to a change in
the opinion.
On appeal, Dollar General posits:
“[i]s Kentucky willing to do something about the opiate epidemic plaguing our
state?” and “[w]hat is the purpose of this ‘pain management agreement’ Dr.
Farrage had Mr. Moore sign?” It notes,
as reflected in Dr. Hazlewood’s December 31, 2015, report, the state of
Tennessee has mandated termination of opiates whenever the patient has violated
the opioid agreement more than once.
Dollar General also asks: “[i]s there no accountability for the patient
who deceives the provider for purposes of securing controlled substances or for
the physician who turns a blind eye to the patient’s deceptions?”
Counsel for Dollar General makes
highly inappropriate assertions alluding to a conversation she had with an
Administrative Law Judge not currently serving on the Medical Fee Dispute
docket. We will not consider these assertions
and admonish counsel that she shall refrain from citing to any conversations
with Administrative Law Judges in her brief and referring to anything not in
evidence. Further, counsel shall refrain
from framing an argument based on purported extraneous conversation.
First, Dollar General asserts the
ALJ’s reliance upon Dr. Farrage’s December 17, 2015, note is erroneous as it
does not constitute substantial evidence.
Citing to Cepero v. Fabricated Metals Corp., 132 S.W.3d 839 (Ky.
2004), it argues that while Cepero involved the reliability of a
causation opinion rendered by physicians who were grossly misinformed regarding
the claimant’s past medical history, the fundamental principle is relevant in
the present appeal. Dollar General
contends Dr. Farrage’s statement regarding Moore’s history relevant to the
issues of patient compliance, evidence of addiction, or diversion, is factually
incorrect and misleading with respect to the nature and dosage of Moore’s
current prescription regimen. It
contends it is not true there has been no evidence of addiction or diversion as
Dr. Farrage’s record documents Moore took a co-worker’s opiates and Dr.
Hazlewood’s records document Moore’s admission he took his wife’s Xanax and his
father’s Fentanyl.
Second, Dollar General argues Dr.
Farrage’s description of Tramadol as a non-opioid derived medication seems to
be designed to suggest the medication is not an opioid and therefore somehow
less harmful. However, Dr. Hazlewood
explained Tramadol is a highly potent and addictive synthetic opiate included
in the FDA’s list of Schedule II controlled substances. It suggests Dr. Farrage’s statement had the
intended effect as the ALJ found Moore is “compliant and doing well on the
current regimen, a reduction from a prior dosage.”
Third, Dollar General asserts it is
untrue Moore’s prescription of Hydrocodone has decreased under Dr. Farrage’s
care. Moreover, it maintains this
assertion completely glosses over the addition by Dr. Farrage of Tramadol to
Moore’s prescription regimen. It
contends this medication was clearly not added by Dr. Farrage in the
independent exercise of medical judgment.
Rather, it contends it is apparent from Dr. Farrage’s New Patient
Evaluation that he initiated the prescription of Tramadol based on Moore’s
misrepresentation he had already been taking that medication when he came under
the care of Dr. Farrage.
Fourth, Dollar General argues whether
Dr. Farrage’s statement is the product of affirmative misrepresentations by
Moore or a result of Dr. Farrage’s negligence or willful ignorance of the facts
is irrelevant. It asserts the
conclusions set forth in Dr. Farrage’s December 17, 2015, statement are so
materially flawed they cannot constitute substantial evidence as a matter of
law. Thus, the ALJ erred in relying upon
Dr. Farrage’s statement.
Fifth, Dollar General notes the ALJ
dismissed Moore’s martial arts activities as not being problematic. However, Dr. Hazlewood believed the
significance of Moore’s participation in a martial art which is very physical
in nature bears on his subjective complaints of pain. It notes over the past three years Moore has
reported to Dr. Farrage increasing levels of pain despite escalating dosages of
narcotics. It maintains if Moore’s
engagement in a physically strenuous martial art is causing his increasing
levels of pain, it is not responsible for the narcotic pain medication used to
address this problem. Dollar General
notes this was the basis of its assertion of unreasonable failure to follow
medical advice.
In conclusion, Dollar General asserts:
Dr. Farrage’s medical chart and Mr.
Moore’s prescription transaction history unequivocally establish Dr. Farrage
has prescribed more hydrocodone from 2013 to 2014 to 2015, and also added a
second opiate to the mix. This is compelling evidence and the ALJ’s finding to
the contrary is clearly erroneous. Moreover, Dr. Farrage charts an increase in
Mr. Moore’s average pain level and increase in pain interference with general
activities despite the escalating
morphine equivalent dosage prescribed. In light of these facts, the ALJ’s
determination should be reversed and this matter should be remanded for entry
of an Order directing the weaning of Mr. Moore from this destructive opiate
regimen.
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 that 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 Dollar General was unsuccessful
before the ALJ, the sole issue in this appeal is whether the evidence compels a different conclusion.
The
claimant bears the burden of proof and risk of persuasion before the board. If
he succeeds in his burden and an adverse party appeals to the circuit court,
the question before the court is whether the decision of the board is supported
by substantial evidence. On the other hand, if the claimant is unsuccessful
before the board, and he himself appeals to the circuit court, the question
before the court is whether the evidence was so overwhelming, upon
consideration of the entire record, as to have compelled a finding in his
favor.
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 (
If the fact-finder finds against the person with the
burden of proof, his burden on appeal is infinitely greater. It is of no avail
in such a case to show that there was some evidence of substance which would
have justified a finding in his favor. He must show that the evidence was such
that the finding against him was unreasonable because the finding cannot be
labeled “clearly erroneous” if it reasonably could have been made. Thus, we have simply defined the term “clearly
erroneous” in cases where the finding is against the person with the burden of
proof. We hold that a finding which can reasonably be made is, perforce, not
clearly erroneous. A finding which is unreasonable under the evidence presented
is “clearly erroneous” and, perforce, would “compel” a different finding.
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 (
The opinions of Dr. Farrage set forth
in his December 17, 2015, letter constitute substantial evidence supporting the
ALJ’s decision. Dr. Farrage indicated Moore
is currently on the prescription medication regimen of Hydrocodone with the
availability of Tramadol and Lortab for break-through pain. He listed the conservative measures being
employed. He had successfully reduced
the previous required high dosage of Hydrocodone with transition to a
non-opioid derived centrally acting analgesic agent. Finally, he concluded there was no issue with
compliance or evidence of addiction or diversion.
Dr. Farrage’s statement that
prescription monitoring and urine drug screens were also conducted regularly is
not contradicted by any medical record.
Dr. Hazlewood stated he “didn’t see that pill counts are being
performed” and it “appeared drug screens were rarely obtained.” However, Dr. Hazlewood did not conclusively
state prescription monitoring and drug screens were not regularly conducted.
Concerning Dollar General’s assertion
Dr. Farrage did not have a complete history of Moore’s activities and medical
history, we note Dr. Farrage stated Moore was gainfully employed and enjoys
some vocational activities once again. Based
on that statement, we believe the ALJ could reasonably conclude Dr. Farrage was
aware of Moore’s martial arts activities since he indicated he had reviewed Dollar
General’s medical fee dispute dated on October 8, 2015. The Form 112 contains the social media attachments
relating Moore’s martial arts activities.
Further, the report of Drs. Lewis and
Mazzella, Dr. Hazlewood’s initial evaluation of June 28, 2011, and the claim
transaction history, listing the prescriptions written from April 16, 2010,
through September 9, 2015, were attached to the Form 112. The representations he had reviewed the
medical fee dispute strongly implies Dr. Farrage was aware Moore had taken his
wife’s Xanax and received a Fentanyl patch from his father in 2011. Thus, the ALJ could reasonably conclude Dr.
Farrage had a complete and accurate medical history including the episodes
outlined by Drs. Lewis, Mazzella, and Hazlewood at the time he drafted his
response of December 17, 2015.
Based on the above, we find no merit in Dollar
General’s argument the December 2015 note of Dr. Farrage does not constitute
substantial evidence. Cepero, supra, was
an unusual case involving not only a complete failure to disclose, but
affirmative efforts by the employee to cover up a significant injury to the
left knee only two and a half years prior to the alleged work-related injury to
the same knee. The prior, non-work-related injury had left Cepero confined
to a wheelchair for more than a month. The physician upon whom the ALJ
relied in awarding benefits was not informed of this prior history by the
employee and had no other apparent means of becoming so
informed. Every physician who was adequately informed of this prior
history opined Cepero’s left knee
impairment was not work-related but, instead, was attributable to the
non-work-related injury two and a half years previous. We find nothing akin to Cepero
in the case sub judice. The ALJ could reasonably infer the opinions
expressed by Dr. Farrage on December 17, 2015, were based on a complete
understanding of Moore’s medical history and social activities as he indicated
he had reviewed the information set forth in Dollar General’s medical fee
dispute.
Dollar General asserts Dr. Farrage’s
statement that Moore has been compliant and there is no evidence of addiction
or diversion is factually incorrect. It
notes Dr. Farrage’s records document Moore had taken a co-worker’s opiates and
Dr. Hazlewood’s records document Moore’s admission he took his wife’s Xanax and
his father’s Fentanyl. With regard to
that assertion, Dr. Hazlewood’s June 2011 record indicates Moore advised him he
had taken his wife’s Xanax, but the drug screen did not show the presence of Xanax. Further, when he questioned Moore, Dr.
Hazlewood was told Moore had received his father’s Fentanyl patch. Significantly, this all occurred prior to the
institution of any type of pain management as Dr. Hazlewood’s June 28, 2011, report
was generated as a result of Moore’s initial visit. Dr. Hazlewood’s records do not demonstrate he
saw Moore after that occasion. Moreover,
except for the one occasion Moore received a tablet from a co-worker, the
record is devoid of evidence Moore engaged in any similar conduct while
undergoing formal pain management. Thus,
within her discretion, it appears the ALJ concluded that except for taking “a
co-worker’s prescription medication after running out of his own,” Moore had
been compliant with Dr. Farrage’s pain management plan.
We
note the assertion Dr. Farrage’s record documents Moore was taking a
co-worker’s opiates is contained in Dr. Hazlewood’s December 31, 2015, record
review report. In summarizing Dr.
Farrage’s records, Dr. Hazlewood does not reference any record indicating Moore
had told him of consumption of a co-worker’s opiates. However, in summarizing the records provided
by Dollar General’s counsel, Dr. Hazlewood cited to a record of Dr. Farrage
dated September 9, 2013, in which Moore informed Dr. Farrage he had taken a
co-worker’s Hydrocodone after he ran out.
The September 9, 2013, record of Dr. Farrage in the possession of Dollar
General was not filed in evidence. Except
for the July 19, 2012, New Patient Evaluation and the four Brief Pain
Inventories, none of Dr. Farrage’s records are in evidence. It appears from Dr. Hazlewood’s recitation
that Moore volunteered this information to Dr. Farrage in September 2013. Further, even though the September 9, 2013,
record is not in evidence, it appears the incident referenced in September 2013
did not involve Moore taking medication other than the type prescribed by Dr.
Farrage. Thus, Dr. Farrage’s statement
there were no issues with compliance or evidence of addiction or diversion,
other than the one event alluded to by Dr. Hazlewood in his report, does not per
se constitute a misrepresentation. More
importantly, the ALJ was aware of this allegation and attributed no weight to
it.
With respect to Dr. Farrage’s statement he
discontinued the Hydrocodone and used a non-opioid derived centrally acting
analgesic agent, Dollar General contends this statement demonstrates Dr.
Farrage considers Tramadol a non-opioid.
Although the information purportedly from the National Institutes of
Health/U.S. National Library of Medicine filed in the record indicates Tramadol
is an opioid, it also indicates it is a synthetic opioid. The significance of the difference between
Dr. Hazlewood’s opinion concerning the nature of Tramadol in comparison to Dr.
Farrage’s opinion merely goes to the weight to be given these opinions which is
to be resolved by the ALJ.
In
a companion argument, Dollar General contends Dr. Farrage’s statement Moore’s
prescriptions of Hydrocodone have been decreased is false. It argues Dr. Farrage’s use of Tramadol has resulted
in an increase in the dosage of opioids.
We have reviewed the claim transaction history which is a list of
prescriptions written from April 16, 2010, through January 19, 2015. Although there is no evidence in the record
as to the effects of Tramadol versus the effects of Hydrocodone, it is clear
from that document, that during this period over 4,000 7.5-325 tablets of
Hydrocodone/Acetaminophen were prescribed for Moore by Dr. Hall.[3] That same record reflects that between July
19, 2012, and September 9, 2015, Dr. Farrage prescribed 1,020 7.5-325 tablets
of Hydrocodone/Acetaminophen. These
records clearly indicate there was a substantial reduction in the quantity of
Hydrocodone/Acetaminophen prescribed during the period of Dr. Farrage’s pain
management. We emphasize the record is
devoid of any evidence comparing and contrasting the relative potency and effects
of Tramadol to Hydrocodone. Thus,
without such medical evidence it was impossible for the ALJ to determine
whether Tramadol had equal or greater potency than Hydrocodone.
Significantly,
in his 2011 report, Dr. Hazlewood indicated opioid prescriptions were
appropriate; however, he expressed concern as to the amount. Dr. Hazlewood offered no opinion as to whether
the prescriptions written by Drs. Malmquist and Hall were inappropriate. Even though general information from the
National Institutes of Health/U.S. National Library of Medicine regarding
Hydrocodone and Tramadol was filed in the record, there is no evidence in the
record comparing and contrasting Hydrocodone and Tramadol; i.e. whether one has
greater potency and has greater or less side effects. It appears from Dr. Hazlewood’s report of
December 31, 2015, that Tramadol HCL ER and Tramadol HCL are short-acting
opioids and Hydrocodone is a long-acting opioid. That being the case, Dr. Farrage had reduced
the number of long-acting opioids and employed short-acting opioids. Even though Drs. Hazlewood and Dyer opined opioid
therapy was inappropriate, neither expressed the opinion that if opioid
treatment was appropriate the dosages prescribed were excessive.
Dollar General also argues Dr. Farrage’s
report of July 19, 2012, indicates Moore represented he had taken Tramadol
prior to seeing Dr. Farrage. In his
report, Dr. Farrage indicated Moore’s current medications were Hydrocodone and
Tramadol. In his plan, Dr. Farrage noted
Moore has attempted to self-taper off Hydrocodone and was interested in
continued use of Tramadol. He noted the
KASPER system was “queried” and Moore had been prescribed Pennsaid. He stated Moore has been prescribed “Tramadol
50 mg one po qid #120” and a J-brace for his left knee. These notations do not establish Moore had
taken or had informed Dr. Farrage he had taken Tramadol prior to July 19,
2012. The Claim Transaction History depicting
the prescriptions written by various doctors indicates on July 19, 2012, Dr.
Farrage wrote a prescription for Tramadol HCL.
Further, Dr. Farrage’s review of the KASPER system did not indicate the
use of Tramadol. Dr. Farrage’s July 2012
report does not conclusively establish Moore was taking Tramadol prior to July
19, 2012.
Dollar General also takes issue with the
ALJ’s finding Moore’s martial arts activities were not a problem. It cites to Dr. Hazlewood’s opinions
regarding the significance of Moore’s participation in martial arts. However, there is nothing in the record spelling
out the physical activities required by the martial arts program. Dollar General introduced pictures of Moore
evidently posted on social media. However,
none of the pictures depict any physical activity. Similarly, the social media posts do not
contain a description of the activities in which Moore engaged. The only evidence offered detailing the
physical activities required by Hapkido is contained in the affidavit of Dollar
General’s counsel in which he relates Wikipedia’s description of Hapkido. This information is not in evidence; rather, it
is merely counsel’s representation of Wikipedia’s description of the activities
Hapkido entails.[4] More importantly, the ALJ’s statement that
martial arts activities were not a problem is supported by Dollar General’s
medical expert, Dr. Dyer, who opined he had no reason to suggest any of Moore’s
ongoing problems or dysfunction in his left knee is related to his martial arts
activities. Thus, Dollar General’s
assertion Moore’s martial arts activities constitute an unreasonable failure to
follow medical advice is without merit.
Significantly, Dr. Hazlewood’s June 28,
2011, report reflects his opinion Moore’s pain complaints appear to be “very much
mechanical and intrinsic type knee pain” and were very legitimate. He also stated there was chronic opioid
dependency with low risk of addiction based on his interaction. Dr. Hazlewood opined he expected Moore to
wear out the medial joint fairly quickly based on his gait pattern. He noted Moore had significant genuvalgous
angle when he stands asymmetrically and his gait is placing a lot of stress on
the knee. Dr. Hazlewood indicated he had
no recommendations regarding the type of orthotics which could help Moore. At that time, his goal was to maintain Moore
on opiates on as low a dose as possible.
Notably, at that time he believed Moore was taking an acceptable
dosage. In summarizing the situation, he
indicated he hated to see an individual of Moore’s age on chronic opiates;
however, there were not many options left.
Although he suggested Voltaren gel and a TENS unit, Dr. Hazlewood stated
he would decrease the Lortab to three tablets per day and see if Moore could
manage. He did not recommend
discontinuing opioids at that time.
We have reviewed Dr. Farrage’s charts completed
by Moore and summarized in the affidavit of Dollar General’s counsel. Dollar General contends those charts contradict
Dr. Farrage’s representation the medications Moore takes have lessened his
pain. Moore completed a Brief Pain
Inventory in June and August of 2014. On
both occasions he indicated his worst pain was seven and his least pain was two
and three, respectively. On both
occasions, Moore’s average pain was five.
In 2015, he indicated his worst pain was five, his least pain was two,
and his average pain was three. The
summary of Moore’s representations in the Brief Pain Inventory, as prepared by Dollar
General’s counsel, contradict Dollar General’s argument that Moore’s pain had
increased in 2015. In 2015, Moore’s
worst pain had decreased by two, his least pain was still two, and his average
pain had decreased by two.
In her February 3, 2016, decision, the ALJ
specifically noted she does not have a medical or pharmaceutical degree and
chose to rely upon the medical opinions rather than medication printouts. The ALJ also noted Moore was being weaned to
a lesser dosage. Thus, the ultimate
decision as to the amount of medication would be left up to Dr. Farrage as long
as the guidelines for prescribing and drug testing were followed. Dollar General has offered no evidence
demonstrating that in prescribing Hydrocodone/Acetaminophen, Tramadol HCL, and
Tramadol HC ER, Dr. Farrage had not followed the appropriate guidelines or has
not conducted the appropriate drug testing.
The ALJ’s finding pain management was appropriate is not only supported
by the opinions of Dr. Farrage but also by the opinions of Dr. Hazlewood
expressed in his June 28, 2011, report. Similarly,
the use of opioids is supported by Dr. Farrage’s December report and by Dr.
Hazlewood’s June 28, 2011, report.
Finally, the ALJ’s refusal to find Moore
had failed to follow medical advice is supported by Dr. Dyer, Dollar General’s
evaluating physician.
Accordingly, since the ALJ’s decision is
supported by substantial evidence and the evidence does not compel a different
conclusion, the February 3, 2016, Medical Fee Opinion and Order and the March
9, 2016, Order overruling the petition for reconsideration are AFFIRMED.
RECHTER, MEMBER, CONCURS.
ALVEY, CHAIRMAN, CONCURS AND FILES A SEPARATE OPINION.
ALVEY, CHAIRMAN. While I
agree with the result reached by the majority, I would go further. I believe we should remand this claim to the
Administrative Law Judge to consider imposition of sanctions pursuant to
342.310 for the blatant hearsay and allegations asserted by counsel for Dollar
General. Additionally, the references to
Wikipedia and Facebook appear to have been made without any foundation. These assertions on the part of counsel for
Dollar General border on the necessity of referral to the Kentucky Bar
Association for consideration of violations of SCR 3.130(3.1) and SCR
3.130(3.3). Again, counsel for Dollar
General is admonished from making such assertions or attempting to submit such
evidence without foundation in the future.
COUNSEL
FOR PETITIONER:
HON STEPHANIE D ROSS
250 GRANDVIEW DR STE 550
FT MITCHELL KY 41017
COUNSEL
FOR RESPONDENT:
HON MICHAEL D LINDSEY
1830 DESTINY LN STE 111
B0WLING GREEN KY 42104
RESPONDENT:
DR JAMES FARRAGE JR
1725 MCINTOSH ST
BOWLING GREEN KY 42104
ADMINISTRATIVE
LAW JUDGE:
HON JANE RICE WILLIAMS
217 S MAIN ST STE 10
LONDON KY 40741
[1] The report of Dr. Klingbeil is not a part of
the record.
[2] Dr. Hazlewood compared Moore’s rating of his
pain in 2013 and 2014.
[3] We are presuming Linda Stovall, an ARNP, held
a position with Dr. Hall’s office.
[4] The ALJ was not required to give any weight
to Dollar General’s counsel’s representation as to how Wikipedia describes
Hapkido.
