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Workers’
Compensation Board
OPINION
ENTERED: September 2, 2016
CLAIM NO. 200489664
RALPH TURNER PETITIONER
VS. APPEAL FROM HON. JANE
RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE
TOYOTA MOTOR MFG. and
HON. JANE RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. Ralph Turner, pro se, (“Turner”)
seeks review of the decision rendered April 19, 2016 by Hon. Jane Rice Williams,
Administrative Law Judge (“ALJ”), resolving a medical dispute in favor of
Toyota Motor Manufacturing Kentucky, Inc. (“Toyota”). Turner also appeals from the May 24, 2016
Order denying his petition for reconsideration.
On appeal, Turner
argues the evidence compels a determination contrary to that reached by the
ALJ. In this instance, the ALJ acted
within her discretion, and her decision is supported by substantial
evidence. Because a contrary result is
not compelled, we affirm.
Turner filed a Form 101
on October 7, 2004 alleging he injured his low back while working for Toyota on
January 16, 2004. He specifically
alleged he injured his “lower back (DX: HNP L4-5 and L5-S1 with L4-5 central
thecal sac compression & bilateral L4-5 & L5-S1 neuroforaminal
narrowing.”
In support of the Form
101, Turner filed the June, 22, 2004 report of Dr. Phillip Tibbs, a
neurosurgeon. Dr. Tibbs noted Turner had
not reached maximum medical improvement, but had a minimum impairment rating of
12% pursuant to the Fifth Edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (“AMA Guides”). He also recommended restrictions of no
lifting over forty pounds maximum on a maximum basis, or over twenty-five
pounds frequently. He did not believe
Turner needed a lumbar fusion.
Turner also filed the
September 9, 2004 report of Dr. Anthony McEldowney who confirmed the diagnosis
alleged in the Form 101. He determined
the injury was work-related and assessed a 13% impairment rating pursuant to
the AMA Guides. Dr. McEldowney
agreed Turner’s activities should be restricted and determined he did not have
the capacity to return to the job performed at the time of the injury.
Turner and Toyota
eventually settled the claim. The Form
110-I settlement agreement was approved by Hon. James L. Kerr, Administrative
Law Judge on March 10, 2005. The claim
was settled for a lump sum of $62,879.00 on the basis of a compromised 12%
impairment rating. Medical benefits were
to remain open.
On December 17, 2015,
Toyota filed a motion to reopen to challenge medical treatment in the form of
continued pain management, injections and prescriptions for Celebrex,
Gabapentin and Norco. Toyota
additionally filed a Form 112 Medical Fee Dispute, and a motion to join Dr.
Traci Westerfield and M. Joseph Medical.
In support of the
medical dispute, Toyota filed the November 30, 2015 utilization review report
of Dr. Phillip Chiou, who is board certified in Physical Medicine and
Rehabilitation, as well as Pain Medicine.
Dr. Chiou found the prescriptions for Celebrex, Gabapentin and Norco
were not medically necessary.
Toyota also filed the
report of Dr. David Jenkinson who evaluated Turner on July 29, 2015 at its
request. In addition to his examination,
Dr. Jenkinson reviewed numerous medical records from 2004 through 2015. He opined Turner needs no additional medical
treatment for the work injury. He found
Turner’s subjective complaints grossly exceeded his objective abnormality. He found no basis or need for fusion
surgery. He specifically found no need
for Celebrex, and stated Turner should be weaned from Norco.
The claim was assigned
to the ALJ by order dated January 7, 2016.
In an order dated January 20, 2016, she found Toyota had made the
necessary prima facie showing, and
sustained its motion to reopen.
At the telephonic
conference held on February 8, 2016, it was noted the medical dispute concerned
the ongoing prescriptions for Celebrex, Gabapentin, and Norco. The dispute also included pain management and
injections. The basis of the challenge
was for both causation and reasonableness and necessity. A telephonic benefit review conference
(“BRC”) was scheduled.
Dr. Westerfield, who
works with Dr. Ballard Wright, submitted treatment records from January 10,
2006; September 9, 2015; November 10, 2015 and January 8, 2016. Those records reflect ongoing treatment with
Celebrex, Gabapentin and Norco which she related to the 2004 work injury.
Turner filed a statement
in which he outlined his treatment and the belief his ongoing treatment was
reasonable and necessary.
A telephonic BRC was
held on March 15, 2016. At that time,
the issues identified at the previous telephonic conference were
confirmed. The parties agreed to waive
the hearing and submitted the case on the record.
The ALJ rendered a
decision on April 19, 2016, resolving the medical dispute in Toyota’s
favor. The ALJ specifically found as
follows:
A
telephonic Benefit Review Conference was held on March 15, 2016. Plaintiff, the medical provider and Defendant
Employer participated. The formal
hearing was waived and the Medical Fee Dispute was submitted on the record for
a decision as of March 15, 2016.
Defendant
Employer introduced the November 30, 2015 report of Phillip Chiou, M.D., who
conducted a records review and noted the diagnosis of chronic pain related to
degenerative lumbar/lumbosacral intervertebral disc disease. He found the contested medications were
prescribed without adequate required documentation of the benefit or any
improvement from the drug. Celebrex was
not recommended to be prescribed on a long term basis. Gabapentin is an anti-epileptic drug for
neuropathic pain and there was no documentation that it provided even 30%
relief. The use of opioids (Norco) is
inappropriate if it fails to improve quality of life. The record reflects Plaintiff leads a
sedentary lifestyle and has not worked in over 10 years. For these reasons, none of the contested
medications should be continued.
Defendant
Employer introduced the report of David J. Jenkinson, M.D., who conducted an
Independent Medical Evaluation (IME) on July 29, 2015, by taking a history from
Plaintiff, reviewing medical records and conducting a physical examination. He
provided a history of a 2004 onset of pain while pulling a cord. He has continued in pain management and has
not worked since 2004. He sees Dr. Tibbs
about every 4 years. Following a
thorough examination, Dr. Jenkinson determined there is no need for further
treatment related to the work injury. He
found no symptoms consistent with lumbar facet arthropathy and noted a modest
degree of degenerative disc change such as is noted in the general
population. He found Plaintiff should be
weaned from Norco and Celebrex, and should be discontinued.
The
record includes treatment notes from Dr. Westerfield confirming the contested
treatment.
In
a post-judgment Motion to Reopen to Assert a Medical Fee Dispute, Defendant
Employer has the burden of proving that the contested medical expenses and/or
proposed medical procedure is unreasonable or unnecessary, while the Plaintiff
maintains the burden of proving that the contested medical expenses and/or
proposed medical procedure 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 specific instance, Defendant Employer has moved to reopen this claim to
challenge the work relatedness, reasonableness and/or necessity of pain
management, including injections and prescriptions for Gabapentin, Celebrex and
Norco. After careful consideration of
the evidence, the only real opinion testimony is provided in support of
Defendant Employer’s position. Dr.
Westerfield’s office notes do not adequately address the contested issues herein
and the opinions of Dr. Chiou and Dr. Jenkinson are persuasive that the 2004
strain type injury would not continue to result in all Plaintiffs’ symptoms 12
years later. As Plaintiff always bears
the burden of proving work relatedness and has failed to do so in this case,
the contested treatment is found not work related and non-compensable. Possibly unrelated problems are responsible
for a need of current treatment but not the 2004 work injury.
III. AUTHORITIES
KRS 342.020
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)
National Pizza Company vs. Curry, 802 SW2d 949 (KY 1991)
IV. ORDER
IT IS HEREBY ORDERED AND
ADJUGED AS FOLLOWS:
The
Motion to Reopen filed by Defendant Employer, Toyota Motor Manufacturing
Kentucky, Inc., and/or its insurance carrier, to assert a Medical Fee Dispute
challenging the work relatedness, reasonableness and/or necessity of pain
management, including injections and prescriptions for Gabapentin, Celebrex and
Norco, shall be, and the same is hereby resolved in favor of Defendant
Employer. Following a weaning, if
necessary, the disputed expenses are non-compensable
Turner filed a petition
for reconsideration challenging the ALJ’s determination and requesting the
decision be set aside. In support of his
petition, Turner attached multiple medical records. The petition for reconsideration was denied
in an order issued May 24, 2016.
We first note, in a post-award medical fee dispute, the burden
of proof to determine the medical treatment is unreasonable or unnecessary is
with the employer, while the burden remains with the claimant concerning
questions pertaining to work-relatedness or causation of the condition. See
KRS 342.020; Mitee Enterprises vs. Yates, 865 S.W.2d 654 (Ky. 1993); Addington
Resources, Inc. v. Perkins, 947 S.W.2d 421 (Ky. App. 1997); R.J. Corman
Railroad Construction v. Haddix, 864 S.W.2d 915, 918 (Ky. 1993); and National
Pizza Company vs. Curry, 802 S.W.2d 949 (Ky. App. 1991).
Here, the ALJ
determined the contested medical treatment was not work-related and therefore
not compensable. The ALJ has the right and obligation to determine the compensability of
medical treatment based upon the evidence presented. Substantial evidence has been defined
as some evidence of substance and relevant consequence, having the fitness to
induce conviction in the minds of reasonable people. See Smyzer
v. B.F. Goodrich Chemical Co., 474 S.W.2d 367, 369 (Ky. 1971); Special
Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
In this instance, the ALJ’s determinations are supported by substantial
evidence of record and will not be disturbed.
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 (Ky. 1993); Paramount Foods, Inc. v. Burkhardt, 695
S.W.2d 418 (Ky. 1985). Similarly, the
ALJ has the sole authority to judge the weight and inferences to be drawn from
the evidence. Miller v. East Kentucky
Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997); Luttrell v. Cardinal Aluminum Co., 909 S.W.2d 334 (Ky. App. 1995). Where the evidence is conflicting, the ALJ
may choose whom or what to believe. Pruitt
v. Bugg Brothers, 547 S.W.2d 123 (Ky. 1977). The ALJ has the discretion and sole authority
to reject any testimony and believe or disbelieve 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 (Ky. 1977); Magic Coal v.
Fox, 19 S.W.3d 88 (Ky. 2000); Halls Hardwood
Floor Co. v. Stapleton, 16 S.W.3d 327 (Ky.
App. 2000). Mere evidence
contrary to the ALJ’s decision is not adequate to require reversal on
appeal. Whittaker
v. Rowland, 998 S.W.2d 479 (Ky.
1999).
Here,
the ALJ properly considered the evidence of record and applied the correct
analysis in reaching her determination. She found the evidence from Drs. Chiou and
Jenkinson to be more persuasive in determining the contested treatment is not
compensable. The ALJ specifically noted
Dr. Westerfield’s office notes do not adequately address the issues raised by
Drs. Chiou and Jenkinson. Since
substantial evidence supports the ALJ’s determination, and she clearly outlined
her reasoning for doing so, we must affirm.
While Turner may point to documentation contrary to this determination,
a different decision is not compelled.
This merely constitutes evidence upon which the ALJ could have relied,
but did not.
Accordingly,
the April 19, 2016 Medical Fee Opinion and
Order, and order denying the petition rendered May 24, 2016 by Hon. Jane Rice
Williams, Administrative Law Judge, are hereby AFFIRMED.
ALL
CONCUR.
PETITIONER,
PRO SE:
RALPH TURNER
4566 HWY 52 WEST
BEATTYVILLE, KY 41311
COUNSEL
FOR RESPONDENT:
HON KENNETH J DIETZ
1511 CAVALRY LN, STE 201
FLORENCE, KY 41042
ADMINISTRATIVE
LAW JUDGE:
HON JANE RICE WILLIAMS
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
