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Workers’
Compensation Board
OPINION
ENTERED: October 7, 2016
CLAIM NO. 201077219
HAZARD COMMUNITY COLLEGE PETITIONER
VS. APPEAL FROM HON. JANE
RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE
WAYNE MELTON,
LAURA ASHER, D.O., and
HON. JANE RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. Hazard Community College (“HCC”) appeals from the Medical Dispute Opinion and Order rendered June
10, 2016 by Hon. Jane Rice Williams, Administrative Law Judge (“ALJ”) resolving
a medical fee dispute in favor of Wayne Melton (“Melton”), by finding ongoing
treatment with medications prescribed by Dr. Laura Asher, D.O., compensable. HCC also seeks review of the July 18, 2016
order denying its petition for reconsideration.
On appeal, HCC argues
the ALJ abused her discretion in admitting into evidence a letter from Dr.
Asher received on April 15, 2016, after the expiration of proof time and after
the claim had been submitted for decision on April 12, 2016. Because we determine the ALJ did not abuse
her discretion and could rely on Dr. Asher’s correspondence, we affirm.
At the time of his
injury, Melton worked in maintenance for HCC. On September 20, 2010, he experienced low
back, left leg and groin pain while moving an 8’ x 10’ stage with two
co-workers. Melton filed a Form 101 on
May 6, 2011 alleging his injuries were caused by the September 20, 2010
accident despite previous low back injuries which occurred in 2005 and
2008.
A Form 110 settling the
claim was approved by Hon. Udell B. Levy, Administrative Law Judge, on March
24, 2015. The agreement reflects the
claim was settled for $200,000.00, of which Melton received $40,000.00 in lump
sum with the remainder to be paid weekly at a rate of $174.61 for 916.28
weeks. The agreement additionally noted
Melton settled his right to future medical benefits except for those related to
his lumbar spine, which would remain open.
On February 4, 2016,
HCC filed a motion to reopen challenging Melton’s medical treatment. It additionally filed a Form 112 and a motion
to join Dr. Asher as a party to the dispute.
In support of the Form
112, HCC attached the utilization review report of Dr. Woodley B. Mardy-Davis
of Rockford, Illinois, dated January 8, 2016.
Dr. Mardy-Davis opined treatment with Gabapentin is medically
necessary. He stated treatment with
Butrans is not related to the work injury, and is neither medically necessary
nor appropriate. He stated neither
Hydrocodone/APAP nor Duloxetine (Cymbalta) are work-related, medically
necessary or appropriate. He also stated
urine drug screens do not reveal Melton is actually taking those
medications. Specifically, Dr.
Mardy-Davis stated as follows:
In
my opinion the treating medical provider, in a accordance with House Bill 1,
the treating medical provider does not meet the professional standards for
dispensing controlled substances given the patient did not demonstrate
compliance with the opioid medication on the 09/2015 and 11/2015 urine drug
screen regarding hydrocodone and this was not addressed.
Dr. Mardy-Davis attached information from the ODG guidelines in
support of his opinions.
An order was issued by
the Commissioner of the Kentucky Department of Workers’ Claims on February 25,
2016 assigning the claim to the ALJ “for consideration of a medical
dispute.” The assigning order does not
contain specific time limits, nor does it contain any information setting forth
time lines for the litigation of the claim.
On February 26 2016,
the ALJ entered an order sustaining the motion to reopen and setting a
telephone conference for March 14, 2016.
The order specifically states at paragraph 5, “The parties shall not
re-file or ‘designate’ medical reports/records attached to the motion to reopen
or Form 112. Such are already
considered. No Form 111 is
required. Witness lists and stipulation
shall not be filed.” The ALJ then sent a
letter to Dr. Asher advising her of the medical dispute, and the telephonic
conference set for March 14, 2016.
At the telephonic
conference held March 14, 2016, the ALJ listed the reasonableness, necessity
and work-relatedness of the prescription medications consisting of Butrans,
Hydrocodone/APAP and Duloxetine as the contested issues. A telephonic Benefit Review
Conference/Hearing was scheduled for April 12, 2016. The ALJ also provided thirty days for the
parties to introduce evidence.
In the order dated
April 12, 2016, the ALJ noted the same issues as listed at the previous
conference and the parties waived a hearing. The ALJ stated, “The matter is submitted as
of April 12, 2016,” despite the fact the thirty days to submit evidence set
forth in the previous order had not yet expired.
On April 12, 2016, Dr.
Asher sent a letter to the ALJ setting forth Melton’s treatment, and the
reasons supporting her prescriptions for the contested medication. In an order dated April 18, 2016, the ALJ
issued an order stating she had received the correspondence from Dr. Asher on
April 15, 2016, and she was notifying all parties of the notice to ensure
“proper filing into the record”.
On April 28, 2016, HCC
filed an objection and motion to strike Dr. Asher’s correspondence as untimely
filed. It noted this was not received until
three days after the claim was submitted, and was both untimely and
prejudicial. The ALJ overruled this
motion in an order issued May 24, 2016.
Subsequent to this ruling, HCC did not move to set aside the submission
of the claim for decision, nor did it attempt to rebut the assertions set forth
by Dr. Asher in her correspondence.
The ALJ issued her
decision on June 10, 2016. In denying
HCC’s medical dispute, the ALJ set forth the following findings:
For
reasons set out herein, the Administrative Law Judge (ALJ) finds Defendant
Employer has not met its burden of proving the challenged medical expenses are
not reasonable and necessary for the cure and/or relief of the effects of the
work injury and, therefore, compensable.
II. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A
telephonic Benefit Review Conference was held on April 12, 2016. Only Defendant Employer participated. The formal hearing was waived and the Medical
Dispute was submitted on the record for a decision as of April 12, 2016.
Defendant
Employer introduced the January 8, 2016 report of Woodley B. Mardy-Davis, M.D.
who reviewed records and noted the 2010 onset of back pain resulting in several
surgical procedures. His back pain is
ongoing and significant. Dr. Mardy-Davis agreed with continuation of Gabapentin
but disagreed with Butrans, Hydrocodone/ APAP and Duloxetine. Butrans was an option when first line
medications failed, undocumented in this case.
Hydrocodone had not been documented as providing significant relief and
had not shown up on a recent drug screen.
Duloxetine was for anxiety, depression and diabetic neuropathy, and not
for back pain. Therefore, none of the
contested medications would be reasonable or necessary as related to the 2010
work injury.
Dr.
Asher provided a letter dated April 12, 2016 and explained her treatment
thoroughly and completely. She has
treated Plaintiff since the 2010 accident and has worked toward reducing
chronic pain and neuropathy from the work injury. She prescribes Norco, Butrans, Neurontin and
Cymbalta. Dr. Asher believes the
contested medications are reasonable and assist with functionality and
decreased pain.
In
a post-judgment Motion to Reopen to Assert a Medical 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 necessity of prescriptions
for Butrans, Hydrocodone/ APAP and Duloxetine.
The opinion of Dr. Mardy-Davis is compelling, but it is the opinion of
Dr. Asher that is found persuasive. Dr.
Asher has more than adequately supported her treatment. Therefore, it is found the contested
medications are reasonable and necessary for the cure and/or relief of the
effects of the work injury and, therefore, compensable.
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
ADJUDGED AS FOLLOWS:
The
Motion to Reopen filed by Defendant Employer, Hazard Community College, and/or
its insurance carrier, to assert a Medical Dispute challenging the work
relatedness, reasonableness and necessity of prescriptions for Butrans,
Hydrocodone/APAP and Duloxetine, shall be, and the same is hereby resolved in
favor of Plaintiff as compensable.
HCC filed a petition
for reconsideration on June 22, 2016, arguing the ALJ erred by considering Dr.
Asher’s untimely filed correspondence.
The petition for reconsideration was denied by order issued July 18,
2016. The order denying the petition for
reconsideration states as follows:
This
matter comes before the Administrative Law Judge (ALJ) pursuant to Defendant
Employer’s Petition for Reconsideration of the Medical Dispute Opinion and
Order of June 10, 2016. After review of Defendant Employer’s argument and the
record, it is noted that the argument is based entirely on the fact that the
ALJ allowed Dr. Asher to file a report outside of proof time. The ALJ, however,
finds it is within her discretion to allow evidence to be untimely filed as the
statements from the treating physician are of utmost importance in determining
the outcome of a medical dispute.
On appeal, HCC argues the ALJ abused
her discretion in admitting the letter from Dr. Asher after proof time had
expired and the claim had been submitted for decision. HCC relies upon the holding in T. J. Maxx
v. Blagg, 274 S.W.3d 436 (Ky. 2008) in support of its argument.
We note the proceedings in a post-award
medical dispute in a reopening pursuant to 803 KAR 25:012 differ from the
filing of an initial claim pursuant to 803 KAR 25:010, and afford greater
latitude or discretion to an administrative law judge. In a claim assigned for resolution pursuant
to 803 KAR 25:010, the scheduling order lists the administrative law judge to
which the claim is assigned to decide the claim, as well as the date, time and
location of the benefit review conference. The scheduling order also establishes the
proof time for introducing evidence by the parties. See
803 KAR 25:010 §8. In a reopening for a medical dispute, the claim is assigned
to the Frankfort motion docket pursuant to 803 KAR 25:012 §1(4)(d) for “further
proceedings” before an administrative law judge. 803 KAR 25:012 §1(6)(c)states, “This dispute
shall be assigned to the Frankfort motion docket, where it shall be either
summarily decided upon the pleadings or assigned to than administrative law
judge for further proof time and final resolution.”
Reopening of a claim
pursuant to KRS 342.125 is a two-step process. Stambaugh v. Cedar Creek Mining, 488 S.W.2d 681 (Ky. 1972). The first step is the filing of a motion,
which places the burden on the moving party to provide prima facie, or sufficient information to demonstrate a substantial
possibility of success in the event evidence is permitted to be taken. AAA Mine Service
v. Wooten, 959 S.W.2d 440 (Ky. 1998). “Prima
facie evidence” is evidence which “if unrebutted or
unexplained is sufficient to maintain the proposition, and warrant the
conclusion [in] support [of] which it has been introduced . . . but it does not
shift the general burden. . . .” Prudential
Ins. Co. v. Tuggle’s Adm’r., 72 S.W.2d 440, 443 (Ky. 1934). Only
if the moving party prevails in making a prima
facie showing as to all essential elements of the grounds alleged for
reopening will the adversary party be put to the expense of further litigation.
Big Elk Creek Coal Co. v. Miller,
47 S.W.3d 330 (Ky. 2001). Documentation sufficient for reopening is not
necessarily sufficient to support a decision in the movant’s favor. Step two of the reopening process then
commences, with additional proof time being afforded to allow the merits of the
reopening to be finally adjudicated. Campbell
v. Universal Mines, 963 S.W.2d 623 (Ky. 1998).
Here,
the ALJ determined HCC made a prima facie
showing for reopening, set a telephonic conference, and established a time
period for the introduction of evidence.
Pursuant to KRS
342.275 and KRS 342.285, the ALJ, as the fact-finder, determines the
quality, character, and substance of all the evidence and is the sole judge of
the weight and inferences to be drawn from the evidence. Square D Company v.
Tipton, 862 S.W.2d 308 (Ky. 1993); Miller v. East Kentucky
Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997). The ALJ may reject any testimony and believe
or disbelieve various parts of the evidence, regardless of whether it was
presented by the same witness or the same party's total proof. Magic Coal Co. v. Fox, 19 S.W.3d 88
(Ky. 2000). A fact-finder is free to reject even
uncontradicted medical evidence of record if the ALJ
provides a sufficient explanation for the rejection. Commonwealth v.
Workers’ Compensation Board of Kentucky, 697 S.W.2d 540 (Ky. App. 1991); Mengel
v. Hawaiian-Tropic Northwest & Central Distributors, Inc., 618 S.W.2d
184 (Ky. App. 1981); Collins v. Castleton Farms, 560 S.W.2d 830 (Ky.
App. 1977).
Here, the
ALJ held two telephonic conferences, and set the proof schedule. It is noted the time for introducing evidence
set forth in the March 14, 2016 order did not expire until the day after the
case was taken under submission. The ALJ
received the correspondence from Dr. Asher two days after the thirty day period
for introduction of evidence had expired, although it was dated April 12, 2016.
That said, we note the facts of T.
J. Maxx v. Blagg differ greatly from the case sub judice. In T. J. Maxx
v. Blagg, a hearing was held, and the claim had been submitted for
decision. In this claim, there was no
hearing. In T. J. Maxx v. Blagg,
the Kentucky Supreme Court held the ALJ erred in ordering a university
evaluation after the claim was taken under submission. In the present case, although not forwarded
to the ALJ until April 15, 2016, the report itself bore the date of April 12,
2016 which was within the thirty days the ALJ had provided in the order dated
March 14, 2016. We also note that case
was an original proceeding governed by 803 KAR 25:010, not a medical dispute
reopening governed by 803 KAR 25:012.
We note HCC filed an objection to the
admission of Dr. Asher’s correspondence, which was overruled by the ALJ. Subsequently, HCC did not move to reopen
proof time, nor did it request leave to rebut Dr. Asher’s correspondence. The introduction of evidence in reopenings
for medical disputes does not fall within the restrictive timelines set forth
in 803 KAR 25:010, thereby leaving the taking of proof to the ALJ’s discretion. As noted by Melton, there is a certain degree
of liberality in administering the Kentucky Workers’ Compensation Act. Nally, Ballard & Saltsman v. Richards,
248 S.W.2d 918 (Ky. 1952).
In this instance, we do not believe
the ALJ abused her discretion or committed reversible error in allowing Dr.
Asher’s correspondence into evidence.
Likewise, we do not find her decision erroneous or unsupported by the
record. We do not believe HCC was unduly prejudiced
by the ALJ’s allowance of the correspondence by Dr. Asher in the record. We additionally note there was no attempt by
HCC to rebut or discredit Dr. Asher’s opinions, or to cross-examine her after
the ALJ decided her correspondence would be admitted.
Accordingly, the June
10, 2016 Medical Dispute Opinion and Order and July 18, 2016 order denying HCC’s
petition for reconsideration by Hon. Jane Rice Williams, Administrative Law
Judge, are hereby AFFIRMED.
STIVERS,
MEMBER, CONCURS.
RECHTER,
MEMBER, CONCURS IN RESULT ONLY.
COUNSEL
FOR PETITIONER:
HON K LANCE LUCAS
1511 CAVALRY LANE, STE 201
FLORENCE, KY 41042
COUNSEL
FOR RESPONDENT:
HON MCKINNLEY MORGAN
921 SOUTH MAIN STREET
LONDON, KY 40741
RESPONDENT:
LAURA ASHER, D.O.
726 HWY 15 N, STE 4
JACKSON, KY 41339
ADMINISTRATIVE
LAW JUDGE:
HON JANE RICE WILLIAMS
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
