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Workers’
Compensation Board
OPINION
ENTERED: March 10, 2017
CLAIM NO. 197953429
JACKSON COUNTY RECC PETITIONER
VS. APPEAL FROM HON. JANE
RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE
DAVID LEAR
DR. AMR EL-NAGGAR and
HON. JANE RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
VACATING
& REMANDING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. Jackson
County RECC (“Jackson County”) seeks review of the decision rendered August 22,
2016 by Hon. Jane Rice Williams, Administrative Law Judge (“ALJ”), resolving a
medical dispute in favor of David Lear (“Lear”). Jackson County also appeals from the
September 29, 2016 order denying its petition for reconsideration.
On appeal, Jackson
County argues the ALJ’s decision is clearly erroneous, and is an unwarranted
exercise of discretion. Jackson County
argues the ALJ incorrectly found that Dr. Amr El-Naggar
opined the need for surgery at L3-L4 was causally related to Lear’s 1979
injury, when in fact the only such reference was from Sarah Todd, PA-C (“Ms.
Todd”). Jackson County also argues the
ALJ erred in failing to acknowledge or address the decision rendered by Hon.
Andrew Manno, Administrative Law Judge (“ALJ Manno”) finding surgery at L4-L5
unrelated to the 1979 work injury, and therefore not compensable. Because we determine the ALJ erred in failing
to assess the work-relatedness of the contested medical treatment in light of
ALJ Manno’s previous decision, and because she failed
to properly address the evidence, her decision is hereby vacated. This claim is remanded to the ALJ for a
determination of compensability in light of the decision by ALJ Manno, and
additionally based upon a correct discussion of the evidence.
Lear filed a Form 101
on October 21, 1980 alleging he sustained broken ribs, collapsed lungs due to
rib piercing, a puncture wound in the low back, a crushed left elbow,
hematuria, and a low back strain/sprain in a work-related accident dated
November 27, 1979. Lear alleged he was,
“standing near top of pole; holding a transformer … left leg broke loose from
pole, the right leg slipped loose. Fell
head first to the ground but was stopped when transformer on the ground impaled
back.” On June 6, 1983, Hon. William
Brooks, member of the old Workers’ Compensation Board, rendered a decision
finding Lear had sustained an injury of “appreciable proportions”, and awarded
medical benefits and income benefits based upon a 10% permanent partial
disability. The decision did not outline
which specific injuries Lear sustained.
On January 24, 2005,
Jackson County filed a motion to reopen to contest treatment of Lear’s
mid-back, L4-L5, and psychological conditions.
The claim was assigned to ALJ Manno.
ALJ Manno rendered a decision on September 16, 2005 finding, “Treatments
for cervical, thoracic, psychological and the L4-L5 lumbar area are deemed non-compensable.” ALJ Manno found Jackson County remained responsible
for medical benefits “for the cure and relief from the effects of the L5-S1
back injury.”
On March 30, 2016,
Jackson County filed a medical dispute, motion to reopen to challenge a proposed
L3-L4 fusion, removal of hardware at L4-L5 and L5-S1, and filed a motion to
join Dr. El-Naggar as a party. The claim was assigned to the ALJ for
resolution.
On April 27, 2016, the
ALJ issued an order sustaining the motion to reopen, joining Dr. El-Naggar as a party, and scheduling a telephonic
conference. In a May 16, 2016 order,
the ALJ noted the issues included the proposed fusion surgery including
reasonableness, necessity and work-relatedness.
In support of its
motion to reopen, Jackson County filed the report of Dr. Henry Tutt, a
neurosurgeon. After setting forth a
review of the history of the case, and the pertinent medical records, Dr. Tutt
answered a series of questions as follows:
1. Q. What are your final diagnoses in this case?
A. Relative
to the work event of record, 11/27/1979, Mr. Lear is considered to have
sustained a left elbow laceration and olecranon chip fracture, resolved, rib
fractures with a pneumothorax, resolved, and a right flank laceration,
heal/recovered. There is no evidence
that he sustained any degree of a lumbar injury. He is considered to have, at most, sustained
a lumbar strain/ sprain/contusion, a transient myofascial injury. In the opinion of the undersigned, Mr. Lear
underwent a decompression and fusion from L4 to the sacrum in 2002 for
degenerative changes unrelated to the work event of 11/27/1979. Because of that instrumental fusion, however,
he has, years later, with the passage of time, developed some adjacent segment
degenerative changes creating some degree, at least, of lumbar spinal stenosis
without segmental instability.
2. Q. In your opinion, is/are the
above diagnoses related to the work incident of 11/27/1979? If not, what is the
cause of Mr. Lear’s current complaints?
A. See discussion above. Mr. Lear’s current complaints are basically
inexplicable. He has a long history of
back and left leg pain for which an etiology was never established, complaints
which were unresponsive to surgical intervention and implantation of a spinal
cord stimulator. Mr. Lear’s primary
diagnosis, relative to these complaints, is considered to be opioid
dependence. He has some degree of lumbar
spinal stenosis at L3-4, but he does not have typical spinal stenosis. His complaints appear to be the same complaints
that he has had all these years since about 1981 or 1982.
3. Q. In your opinion is the
proposed surgery of a posterior lumbar interbody fusion at L3-4 and removal of
hardware at L4-5 and L5-S1 reasonable and medically necessary for the treatment
of Mr. Lear in relation to the 11/27/1979 work incident? Please provide a detailed rationale to
support your opinion.
A. See discussion above. Mr. Lear, depending on the degree of stenosis
at L3-4, may very well be a candidate for decompression of this level, but as
described above, the operation is not indicated referable to the work event
described as occurring on 11/27/1979.
4. Q. In your opinion, is the
proposed surgery of a lumbar interbody fusion at L3-4 and removal of hardware
at L4-5 and L5-S1 causally related to the 11/27/1979 work incident?
A. No. If surgery is done, it will be necessary and
appropriate because of lumbar spinal stenosis at L3-4, which has no
relationship to the work event of 11/27/1979.
5. Q. In your opinion, is Mr.
Lear’s current medical treatment reasonable and necessary as related to the
work incident of 11/27/1979? Please
provide a detailed rationale to support your opinion.
A. No. In the opinion of the undersigned, maximum
medical improvement was achieved a few months after the work event of
record. Medical records and evidence
indicate Mr. Lear made a prompt and rapid recovery from the physical injuries
sustained on 11/27/1979. He later
proffered complaints which were noncorrelative with
his imaging studies for which he had an operation, which in the opinion of the
undersigned was inappropriate and unnecessary, and for which he was given
progressively escalating dosages of narcotics, creating opioid dependence, a
condition presently constituting his primary medical condition. In the opinion of the undersigned, maximum
medical improvement and an endpoint to treatment was achieved by March 1980.
6. Q. In your opinion, does Mr.
Lear require any future medical treatment, such as office visits, medication,
surgical intervention, physical therapy, diagnostic studies, imaging studies,
or epidural steroid injections as related to the work incident of 11/27/1979? If so, please state the nature, frequency,
and course of treatment that you recommend.
A. No. See response to #6.
7. Q. Have all of the answers to
these questions been expressed within the realm of reasonable medical
probability and/or certainty?
A. Yes.
On June 20, 2016, Lear
filed the office records of Dr. El-Naggar for
treatment from July 27, 2015 through November 5, 2015. Those records include an October 30, 2015 MRI
report which indicated Lear was status post fusion and bilateral laminectomies
at L5-S1 and L4-L5. The MRI report also
reflects Lear had disc dessication and disease at
L3-L4. Those records also include the
November 5, 2015 note from Ms. Todd noting the “adjacent” level disc disease at
L3-L4 with a broad based disc bulge.
Although Ms. Todd noted Dr. El-Naggar
recommended an L3-L4 fusion, there are no reports or notes of record from him either
recommending the surgery or relating the condition necessitating the surgery to
the 1979 work accident.
Lear introduced Ms.
Todd’s November 5, 2015 office note separately.
Lear also attached her responses to a questionnaire dated July 14,
2016. The questions propounded, and Ms.
Todd’s responses are set forth below:
2.
You have recommended a lumbar interbody fusion at L3-4 and removal of hardware
at L4-5 and L5-S1. Is this procedure
causally related to patient’s November 27, 1979 work injury? If yes, how?
A.
Yes-due to it being an adjacent level from the
patient’s previous lumbar fusion.
3. Is the
lumbar interbody fusion at L3-4 and removal of hardware at L4-5 and L5-S1
reasonable and medically necessary as a result of the patient’s November 27,
1979 work injury? If yes, why?
A. Yes-due
to it being an adjacent level from the patient’s previous lumbar fusion.
No other medical
evidence was introduced. The ALJ entered
an order on June 21, 2016, which noted the parties had waived the need for a
hearing. The issues to be determined
were the reasonableness/necessity and/or work-relatedness of fusion, medicine
and related treatment.
In her decision
rendered August 22, 2016, the ALJ found as follows:
This is a reopening to assert a Medical
Dispute filed by Defendant Employer, Jackson County RECC. David Lear, Plaintiff, filed a claim alleging
a disability as a result of a November 27, 1979 injury to his back and
elbow. By Opinion, Award and Order issued by the administrative law judge
(ALJ) on June 6, 1983, Plaintiff retained his right pursuant to KRS 342.020 to
recover from Defendant Employer, and/or its insurance carrier, such medical
benefits as may reasonably be required for the cure, and/or relief of the effects
of the work injury.
On March 30, 2016, Defendant Employer filed a
Form 112 and a Motion to Reopen this claim to assert a Medical Dispute
challenging the work relatedness, reasonableness and necessity of fusion
surgery, medications and other related treatment. The medical provider whose treatment is
contested, Amr El-Naggar, M.D., was joined by Order
dated April 27, 2016 and has responded.
For reasons set out herein, the
Administrative Law Judge (ALJ) finds Plaintiff has met his burden of proving work
relatedness. 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 work injury. Therefore, same are compensable.
II. FINDINGS
OF FACT AND CONCLUSIONS OF LAW
A telephonic Benefit Review Conference was
held on June 21, 2016. Plaintiff and
Defendant Employer participated. A
formal hearing was waived and the Medical Dispute was submitted on the record
for a decision.
Defendant Employer introduced the March 9,
2016 report of Henry Tutt, M.D., who conducted an independent medical
evaluation (IME) by taking a history from Plaintiff, reviewing medical records
and conducting [sic] physical examination.
Dr. Tutt noted the 1979 work injury when Plaintiff fell from a pole
resulting in the immediate onset of low back pain. Back pain developed and several years later,
Dr. Gilbert performed a fusion.
Plaintiff continued working until sometime in 2003 when his pain
prevented him from being able to do his job.
Dr. Tutt provided a comprehensive summary of medical records
received. He does not believe Plaintiff
sustained any degree of lumbar injury as a result of his fall at work. He considered this event a lumbar
strain/sprain/contusion and found the subsequent surgery to have addressed
degenerative changes unrelated to the 1979 work injury. Still, the fusion has led to the development
of adjacent segment degenerative changes creating a degree of spinal stenosis. Dr. Tutt does not recommend any future
treatment such as office visits, medication, surgical intervention, physical
therapy, diagnostic studies, [sic] imaging studies.
Plaintiff introduced a form completed by Dr.
El Naggar’s assistant Sarah Todd, PAC, dated June 14,
2016 stating Plaintiff’s diagnosis is lumbar and thoracic radiculopathy related
to the previous lumbar fusion at the adjacent level. The proposed surgery is a result of the
problems from the original surgery. The
November 5, 2015 office note of Dr. El Naggar was
attached and provided detail of the original injury, subsequent fusion and
severe back pain with leg pain. Dr. El Naggar states he will request continuation of pain
medication until the surgery.
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 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 work relatedness, reasonableness
and necessity of fusion surgery, medications and other related treatment. The opinion of the treating physician, Dr. El
Naggar is persuasive in that Plaintiff’s current
pain, the contested medications and surgery are the result of the original work
related and subsequent surgery and is reasonable and necessary. Dr. Tutt’s opinion,
for the most part, is based on the premise that the original surgery should
never have occurred. However, the
original surgery was compensable and Dr. El-Naggar’s
opinion that the current condition is related to that surgery is
persuasive. Therefore, same is
compensable.
Jackson County filed a petition
for reconsideration arguing the ALJ erred by attributing the November 5, 2015
office note to Dr. El-Naggar instead of Ms.
Todd. Jackson County noted there is no
evidence of record from Dr. El-Naggar supporting the
ALJ’s finding the proposed L3-L4 surgery is reasonable, necessary, or causally
related to the 1979 work injury. Jackson
County also noted the ALJ failed to reference the September 16, 2005 opinion of
ALJ Manno, who determined the herniation at L4-L5 was not causally related to
the 1979 work injury. It argued, based
upon Judge Manno’s finding, only treatment for the
L5-S1 is compensable. The ALJ entered an
order on September 29, 2016 denying the petition as being merely an
impermissible request for “rearguement [sic] of the
merits of the case”.
We first note, in a post-award medical 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).
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).
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).
That said, all parties
to a workers’ compensation dispute are entitled to findings of fact based upon
a correct understanding of the evidence submitted during the litigation of the
claim, and based upon a correct procedural history. Where it is demonstrated the fact-finder may
have held an erroneous understanding of the facts pertinent to a decision, the
Courts have authorized remand to the ALJ for further findings. See
Cook v. Paducah Recapping Service, 694 S.W.2d 684 (Ky. 1985); Whitaker
v. Peabody Coal Company, 788 S.W.2d 269 (Ky. 1990).
In this instance, it is
apparent the ALJ did not consider ALJ Manno’s
previous decision entered September 16, 2005 finding treatment for Lear’s L4-L5
disc condition was not work-related.
This was not referenced in the ALJ’s decision, and she failed to address
this when pointed out by Jackson County in its petition for reconsideration. Likewise, the ALJ attributed statements made
by Ms. Todd to Dr. El-Naggar. Again, this was pointed out in the petition
for reconsideration, but the ALJ failed to correct her decision.
The concept of res judicata bars the relitigation of a cause of action previously adjudicated
between the same parties. It requires a
final judgment, identity of subject matter and mutuality of parties. BTC Leasing Inc. v. Martin, 685 S.W.2d
191 (Ky. App. 1984). Res judicata has limited effect in
medical fee disputes, because medical benefits necessarily relate to an
employee’s evolving physical condition. However,
in this instance, the issue of work-relatedness of the L4-L5 condition was
previously determined by ALJ Manno. That
issue was appealed to this Board, and his determination was affirmed. Therefore, the ALJ must take into
consideration ALJ Manno’s decision in arriving at her
determination.
As noted above, the
ALJ’s decision must be based upon the appropriate standard, and in accordance
with the evidence and the facts of the case.
We make no findings, as we are not permitted to do so. Likewise, we do not direct the ALJ to arrive
at any particular result. However, any
determination must be based upon accurate facts and the appropriate
history. On remand, the ALJ must make a
determination based upon the correct evidence, and the history of the claim.
Accordingly,
the August 22, 2016 Medical Fee Opinion
and Order, and the order denying the petition for reconsideration rendered
September 30, 2016 by Hon. Jane Rice Williams, Administrative Law Judge, are
hereby VACATED and this claim is REMANDED for an additional
determination in accordance with the direction set forth above.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON CLAYTON D SCOTT
PO DRAWER 1767
PAINTSVILLE, KY 41240
COUNSEL
FOR RESPONDENT:
HON MCKINNLEY MORGAN
921 SOUTH MAIN STREET
LONDON, KY 40741
RESPONDENT:
DR AMR EL-NAGGAR
75 HAIL KNOB ROAD
SOMERSET, KY 42503
ADMINISTRATIVE
LAW JUDGE:
HON JANE RICE WILLIAMS
PREVENTION PARK
657 CHAMBERLIN AVE
FRANKFORT, KY 40601
