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Workers’
Compensation Board
OPINION
ENTERED: March 24, 2017
CLAIM NO. 200078660
FLINT INK, INC. PETITIONER
VS. APPEAL FROM HON. JANE
RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE
JOSEPH M. ROBERTS,
DR. LAWRENCE H. PETERS and
HON. JANE RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. Flint
Ink Corporation (“Flint”) appeals
from the Medical Dispute Opinion and Order rendered July 11, 2016 by Hon. Jane
Rice Williams, Administrative Law Judge (“ALJ”) resolving a medical fee dispute
in favor of Joseph M. Roberts (“Roberts”).
The ALJ found compensable the ongoing treatment with medications
prescribed by Dr. Lawrence Peters. Flint also seeks review of the December 21,
2016 order denying, in part, its petition for reconsideration.
On appeal, Flint argues
the ALJ’s decision is clearly erroneous based upon the reliable, probative and
material evidence contained in the record as a whole. Flint also argues the ALJ abused her
discretion in finding compensable the contested medications. Because we determine the ALJ’s decision is
supported by substantial evidence, a contrary result is not compelled, and she
did not abuse her discretion, we affirm.
At the time of his
injury, Roberts was employed by Flint making pigment. He continues to work for Flint. Roberts submitted a letter for consideration
as evidence noting his job involves lifting boxes and buckets, digging flush
color out of vats, and extensive stair climbing. On July 13, 1998, Roberts slipped and fell
from a pipe and injured his back at L2-L3 and his left ankle for which he has
had continued treatment since the accident.
A Form 110-I settlement
agreement was approved by Hon. Sheila C. Lowther, Administrative Law Judge, on
July 23, 2002. The agreement reflects
the claim was settled for a lump sum of $16,758.12, based upon an 18%
impairment rating. The right to future medical benefits was retained by Roberts. In support of the settlement agreement were
reports from Dr. Peters and Dr. R. Todd Hockenbury.
On March 4, 2016, Flint
filed a motion to reopen challenging Roberts’ medical treatment. Flint additionally filed a Form 112
challenging prescriptions for Morphine Sulfate and Hydrocodone. It also contested treatment with a compounded
cream consisting of salt stable LS Advanced, Ibuprofen, Bupivacaine HCL Monohydrate,
Cyclobenzaprine HCL, Diclofenac Sodium, and Gabapentin (“compound cream”). It additionally filed a motion to join Dr.
Peters as a party to the dispute.
In support of the
medical dispute, Flint filed the utilization review report of Dr. Chanda
Kewalramani, a family practitioner. Dr.
Kewalramani found there was no reported increase in function after taking
Morphine Sulfate and Hydrocodone, therefore these medications should be
discontinued after undergoing a tapering program. In a report dated February 9, 2016, Dr. David
Smolins, an anesthesiologist, supported Dr. Kewalramani’s recommendations. In a report dated February 10, 2016, Dr.
Brett Bolte, a physical medicine and rehabilitation physician, recommended
non-certification of the compound cream and a TENS unit. In a report dated December 21, 2015, Dr.
Rhaja A. Khuri, who is board certified in internal medicine, preventive
medicine and occupational/ environmental medicine, recommended weaning Roberts
from Morphine Sulfate ER60 and Hydrocodone with cognitive behavioral
therapy. Dr. Khuri found continued
treatment with Lamotrigine 20 mg t.i.d. is reasonable.
An order was issued by
the Commissioner of the Kentucky Department of Workers’ Claims on March 24,
2016 assigning the claim to the ALJ “for consideration of a medical
dispute.” On March 30, 2016, the ALJ
entered an order sustaining the motion to reopen and setting a telephone
conference for April 18, 2016.
On April 18, 2016, the
ALJ entered an order notifying all parties the letter from Roberts dated April
15, 2016 was considered introduced into the record. Roberts provided a description of his
treatment since the 1998 accident. He
specifically noted the compound cream was not used for his left ankle injury,
but was for an unrelated wrist condition.
Regarding the other contested medications, he stated he would be unable
to continue working at his job without them.
On April 18, 2016, the
ALJ also entered an order accepting correspondence from Dr. Peters for
consideration as evidence. In the letter
dated April 14, 2016, Dr. Peters stated Roberts had been able to continue
working with the medications prescribed.
He additionally stated attempts to wean Roberts from the contested
medications had been incapacitating.
At the telephonic
conference held April 18, 2016, the ALJ listed reasonableness, necessity and
work-relatedness of Morphine Sulfate, Hydrocodone, compound cream, current
treatment and office visits as the contested issues. A telephonic Benefit Review
Conference(“BRC”)/Hearing was scheduled for May 17, 2016. The ALJ also provided thirty days for the
parties to introduce evidence.
In the BRC order dated
May 18, 2016, the ALJ noted the contested issues were the same as those listed
at the telephonic conference. The order
also listed the evidence to be considered.
On May 19, 2016, Flint
filed the report of Dr. Henry Tutt dated May 3, 2016. Dr. Tutt diagnosed Roberts with mild
multi-level degenerative changes consistent with the natural aging process;
status post L2-L3 discectomy; and persistent complaints of low back and left
leg pain. Dr. Tutt stated Roberts’ symptoms
are, “continuously propagated by his long-term inappropriate and unnecessary
iatrogenic opioid dependence and opioid hyperalgesia.”
In denying Flint’s
medical dispute, the ALJ determined Roberts had met the burden of proving the
work-relatedness of his ongoing treatment.
She also determined Flint had not met the burden of proving the
challenged medical treatment was not reasonable and necessary. The ALJ specifically found as follows:
For reasons set out herein, the Administrative Law
Judge (ALJ) finds Plaintiff has met the burden of proving work relatedness of
the contested treatment. Defendant
Employer has not met its burden of proving the challenged medical expenses are
not reasonable or necessary for the cure and/or relief of the work injury and,
therefore, same are compensable.
II. FINDINGS OF FACT
AND CONCLUSIONS OF LAW
A telephonic Benefit Review Conference was held on
May 17, 2016. Plaintiff and Defendant
Employer participated. The formal
hearing was waived and the matter was submitted on the record for a decision on
May 17, 2016.
Defendant Employer introduced the December 21, 2015
report of Raja A. Khuri, M.D., who conducted a medical records review and noted
the 54-year-old who suffered a work injury in 1998 when he fell onto pipes
injuring his low back and left ankle. He
diagnosed status post lumbar laminectomy/discectomy, low back pain, lumbar post
laminectomy syndrome, lumbar displacement of intervertebral disc without
myelopathy, lumbar disc herniation, radiculopathy, degenerative disk disease
and left ankle pain. Dr. Khuri
recommended Plaintiff be weaned from Morphine sulfate and hydrocodone as
opioids are not recommended for long-term noncancerous pain management. He recommended continued use of Lamotrigine
to treat neuropathic pain.
Defendant Employer introduced the report of Brett
Bolte, M.D., who conducted a records review on February 10, 2016, noting the
injury and follow-up treatment. Dr.
Bolte determined compound cream was not reasonable and necessary as topical
analgesics are largely experimental in use with few randomized controlled
trials to determine efficacy and safety.
Defendant Employer introduced the January 27, 2016
report of Chanda Kewalramani, M.D., who conducted a records review and agreed
that Plaintiff be weaned from Morphine sulfate and hydrocodone as opioids are
not recommended for long-term noncancerous pain management.
Defendant Employer introduced the February 9, 2016
report of David Smolins, M.D., who conducted a medical records review and
agreed with the other reviewing physicians that Plaintiff should be weaned from
Morphine sulfate and Hydrocodone.
Defendant Employer introduced the May 3, 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 a
physical examination. He noted the 1998
work injury and gave a thorough review of the subsequent treatment. He diagnosed mild multilevel lumbar
degenerative changes consistent with the natural aging process, status post
left discectomy, persistent complaints of back and leg pain non-correlated with
the examination, imaging studies and postoperative EMGs and nerve conduction
studies. Dr. Tutt did not believe the
current complaints were related to a work injury. Therefore, the medications and treatment
would not be related.
On behalf of Plaintiff, Dr. Peters wrote a letter
dated April 14, 2016 and discuss[sic] his treatment of Plaintiff who has
permanent back and leg pain associated with failed surgery of the back, it was
attempted to try and improve symptoms from the work injury. He is no longer a surgical candidate. He has gone through rehabilitative treatment
and has tried multiple different medications.
He used injections (ESI) from time to time as his pain flares. Dr. Peters went to great detail explaining
the reasoning behind the current medication regimen and states that Plaintiff
has been stable on current combination for over 10 years. He has no side effects and no history of
aberrant behavior. Plaintiff works a job
as Dr. Peters described as [sic] very physical job and works 10 to 12 hours a
day. The medications help him continue
his work schedule. Dr. Peters described
the use of compound pain cream because Plaintiff is intolerant to
anti-inflammatories. The compound cream
is used for the posttraumatic arthritis of the left ankle. The compound cream is applied to the left
ankle and has provided significant improvement in symptoms.
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
and unnecessary, while the Plaintiff maintains the burden of proving that the
contested medical expenses and/or proposed medical procedure is causally
related treatment for as a follow up to a second opinion evaluation he
conducted on October 14, 2015. He
provided the effects of the work-related injury. Mitee
Enterprises vs. Yates, 865 SW2d 654 (KY 1993) Square D Company v. Tipton, 862 SW2d 308 (KY 1993) Addington Resources, Inc. v. 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 “care and relief” was intended to be construed as “cure and/or
relief”. National Pizza Company v. Curry, 802
SW2d 949 (KY 1991).
In the dispute herein, Defendant Employer has challenged the work relatedness,
reasonableness and necessity of current treatment, frequency of office visits
and prescriptions for Morphine Sulfate, Hydrocodone and compound cream. The opinion of Dr. Peters is persuasive that
the current treatment is a result of the work injury and subsequent work
related back surgery. While long term
use of opioid therapy is highly risky and frowned upon, in this particular
case, Plaintiff continues to work as a result of the current treatment
regimen. Because he is able to be
productive on the current regimen, it is found to be reasonable. Plaintiff has met the burden of proving work
relatedness. Defendant Employer has not
supported its burden of proving the contested treatment is not reasonable and
necessary for the cure and/or relief of the work injury and therefore, same is
found compensable.
Flint filed a petition
for reconsideration on July 25, 2016 arguing no evidence supported the ALJ’s
determination regarding the compensability of the compound cream. It noted even Roberts stated this was for
unrelated conditions. Flint also argued
the ALJ failed to adequately discuss the conflicting evidence regarding the
remainder of her decision. The petition
for reconsideration was denied, in part, by order issued December 21, 2016. The ALJ, based upon Roberts’ statement, found
the compound cream non-compensable. The
remainder of the petition was denied.
On appeal, Flint argues the ALJ’s
decision is clearly erroneous based upon the reliable, probative and material
evidence contained in the record, and a contrary result is compelled. Flint also argues the ALJ’s decision is
clearly an unwarranted exercise of discretion.
First, we
note that notwithstanding the holding in C
& T Hazard v. Chantella Stollings, et al.,
2012-SC-000834-WC, 2013 WL 5777066 (Ky. 2013), an unpublished case from the
Kentucky Supreme Court, a long line of reported decisions establishes in a
post-award medical fee dispute, the employer bears both the burden of going
forward and the burden of proving entitlement to the relief sought, except that
the claimant bears the burden of proving work-relatedness. National Pizza
Company vs. Curry, 802 S.W.2d 949 (Ky. 1991); Snawder v. Stice, 576
S.W.2d 276 (Ky. App. 1979); Addington Resources, Inc. v. Perkins, 947
S.W.2d 421 (Ky. App. 1997); Mitee Enterprises vs. Yates, 865 S.W.2d 654
(Ky. 1993); Square D Company v. Tipton, 862 S.W.2d 308 (
Since
Flint bore the burden of proving the contested treatment is neither
reasonable nor necessary, the question on appeal is whether the evidence compels
a different result. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky.
App. 1984). “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 (Ky. App. 1985). The function of the
Board in reviewing the ALJ’s decision is limited to a determination of whether
the findings made by the ALJ are so unreasonable under the evidence that they
must be reversed as a matter of law. Ira A. Watson Department Store v.
Hamilton, 34 S.W.3d 48 (Ky. 2000).
As fact-finder, the ALJ has the sole authority to determine the weight,
credibility and substance of the evidence. Square
D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993).
Similarly, the ALJ has the discretion to determine
all reasonable inferences to be drawn from the evidence. Miller v. East
Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997); Jackson v.
General Refractories Co., 581 S.W.2d 10 (Ky. 1979). The ALJ may
reject any testimony and believe or disbelieve various parts of the evidence,
regardless of whether it comes from the same witness or the same adversary
party’s total proof. Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000).
Although a party may note evidence that would have supported a different
outcome than that reached by an ALJ, such proof is not an adequate basis to
reverse on appeal. McCloud
v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974). The Board, as an appellate tribunal, may not usurp
the ALJ’s role as fact-finder by superimposing its own appraisals as to the
weight and credibility to be afforded the evidence or by noting reasonable inferences that otherwise
could have been drawn from the record. Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999).
So long as the ALJ’s ruling with regard to an issue is supported by substantial
evidence, it may not be disturbed on appeal. Special
Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).
In this instance, the ALJ determined
treatment with Morphine Sulfate and Hydrocodone is reasonable and necessary,
relying upon Dr. Peters’ opinion, as well as Roberts’ assessment of his ability
to work due to his ongoing treatment with these medications. Dr. Peters clearly set forth the basis of his
ongoing treatment of Roberts, and outlined what he had determined to be
successful. While the multiple contrary
opinions from Drs. Tutt, Khuri, Bolte, Kewalramani, and Smolins could support a
favorable determination by the ALJ, they do not compel a contrary result.
Flint essentially requests this Board
to re-weigh the evidence, and substitute its opinion for that of the ALJ, which
we cannot do. Whittaker v. Rowland, supra. It was the
ALJ’s prerogative to rely upon Dr. Peters’ opinion. Flint merely points to conflicting evidence
supporting a more favorable outcome, which is not an adequate basis to reverse
on appeal. McCloud v. Beth-Elkhorn Corp., supra.
Flint additionally argues the ALJ
failed to appropriately weigh the evidence.
While authority generally establishes an ALJ
must effectively set forth adequate findings of fact from the evidence in order
to apprise the parties of the basis for his decision, she is not required to
recount the record with line-by-line specificity nor engage in a detailed
explanation of the minutia of his reasoning in reaching a particular
result. Shields v. Pittsburgh and Midway Coal Mining
Co., 634
S.W.2d 440 (Ky. App. 1982); Big Sandy Community Action Program v. Chaffins,
502 S.W.2d 526 (Ky. 1973). The ALJ’s
analysis of the evidence in this claim was sufficient to support her
determination. Likewise, we do not
believe the ALJ abused her discretion or committed reversible error in arriving
at her decision. The ALJ’s decision is
supported by the record, and therefore
we affirm.
Accordingly, the July
11, 2016 Medical Dispute Opinion and Order and December 21, 2016 order denying Flint’s
petition for reconsideration by Hon. Jane Rice Williams, Administrative Law
Judge, are hereby AFFIRMED.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON CLAYTON D SCOTT
PO DRAWER 1767
PAINTSVILLE, KY 41240
RESPONDENTS:
MR JOSEPH M ROBERTS
6705 MORNING STAR WAY
LOUISVILLE, KY 40272
DR LAWRENCE H PETERS
PO BOX 37011
LOUISVILLE, KY 40233
ADMINISTRATIVE
LAW JUDGE:
HON JANE RICE WILLIAMS
PREVENTION PARK
657 CHAMBERLIN AVE
FRANKFORT, KY 40601
