Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED: May 12, 2017

 

 

CLAIM NO. 200500583

 

 

MEADE COUNTY BOARD OF EDUCATION,

as insured by KEMI                             PETITIONER

 

 

 

VS.       APPEAL FROM HON. JONATHAN R. WEATHERBY,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

TERESA PRATHER

DR. RINKOO AGGARWAL

and HON. JONATHAN R. WEATHERBY,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING IN PART, VACATING IN PART,

AND REMANDING

                       * * * * * *

 

 

BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 

 

STIVERS, Member. Meade County Board of Education (“Meade County”) appeals from the November 23, 2016, Opinion and Order of Hon. Jonathan R. Weatherby, Administrative Law Judge (“ALJ”) resolving a Medical Fee Dispute filed by Meade County. The ALJ determined the medical treatment challenged by Meade County to be compensable. Meade County also appeals from the January 19, 2017, Order denying its petition for reconsideration.

          The Form 101 alleges on January 30, 2003, Teresa Prather (“Prather”) sustained injuries to her “right knee and back and left knee, with psychological component” in the following manner: “I slipped on a wet mat on the floor and landed on my right kneee [sic] and back; I also injured my left knee.”^[1]

          In the October 26, 2005, “Opinion and Permanent Partial Award,” Hon. Irene Steen, Administrative Law Judge (“ALJ Steen”), awarded Prather temporary total disability  benefits, permanent partial disability benefits, and medical benefits. ALJ Steen set forth the following findings of fact and conclusions of law:

Based upon the record herein, it is the opinion of this ALJ that Plaintiff does not warrant an award of total disability form [sic] the injury herein. Plaintiff has been seen by a variety of physicians and been through all kinds of diagnostic tests, as the Defendant points out. There is no evidence that Plaintiff is in any need of back surgery, as she basically has only degenerative changes, which are not really any different than that studies from her 2000 injury. I am inclined, however, to adopt the evidence from Dr. Gleis, who felt Plaintiff had an 8% impairment rating to her back, but who also noted that ½ of that rating was due to pre-existing causes, for which this Defendant is not liable. He found no objective evidence of injury to Plaintiff’s cervical spine and assigned a 0% impairment and then the 7% for the knee for a total overall of 11% assessed. He found no evidence or criteria that could support a diagnosis of RSD. He further opined that Plaintiff should be able to perform sedentary to light work, however, there was really no contraindication that Plaintiff would not be able to handle work that included lifting of up to 40 pounds. Inasmuch as Plaintiff cannot return to her former work, her award shall be enhanced with a 3 multiplier. Furthermore, as Plaintiff did express an interest in becoming retrained into another occupation, I will refer her for vocational rehabilitation pursuant to KRS 342.710.

          On August 6, 2009, Meade County filed a Motion to Reopen and Medical Fee Dispute, describing the nature of the dispute as follows:

Plaintiff initially filed an application for resolution of an injury claim alleging the occurrence of a January 30, 2003 injury to her lumbar spine, cervical spine, right knee and a resulting psychological overlay. Following presentation of evidence and submission to an Administrative Law Judge, via an Opinion, Award and Order dated October 26, 2005, the ALJ awarded benefits for the right knee and lumbar spine injuries. The ALJ dismissed the cervical injury. Further, the ALJ’s opinion reflects, ‘Subsequently, Plaintiff expressed a desire to abandon her psychiatric claim and was thus never referred for an IME on behalf of the Defendant.’ Pursuant to the opinion, medical benefits remained open for Plaintiff’s lumbar and right knee injuries. Plaintiff has continued to treat on a recurrent basis. She is currently treating with Dr. Aggarwal who is prescribing an astronomical amount of prescription medications. As indicated in the attached pharmaceutical payment logs, Plaintiff’s prescription medications between March 28, 2009 and May 4, 2009 included narcotic pain medications Endocet 5-325 quantity 90 for a thirty day supply filled on March 28, 2009; Oxycontin 60 mg quantity 90 for a thirty day supply filled on April 21, 2009; Hydrocodone 7.5-5000 quantity 90 for a thirty day supply filled on April 29, 2009. Plaintiff also received prescriptions for Temazpam [sic], Meloxicam, Cymbalta 60 mg, Skelaxin 800 mg., Levetiracetam, another prescription for Cymbalta, Levetiracam, and Temazepam, all within this period. In total, from March 28, 2009 through May 4, 2009 Plaintiff filled medications which, even at a discounted rate, totaled $2,215.60. These medications have been recurrently filled by Plaintiff as Dr. Aggarwal keeps prescribing this enormous amount of prescription medications for a non-surgical lumbar sprain/strain injury and right knee arthroscopic surgery performed back in 2003.

 

Based on this tremendous amount of prescription medications, utilization review was sought. The initial utilization review of Dr. Howard Choi (board certified physical medicine and rehabilitation physician) dated July 10, 2009, Dr. Choi felt none of the continuing medications (Cymbalta, Ambien CR, Hydrocodone, Keppra, Oxycontin, Percocet/Endocet, Restoril, Skelaxin and Meloxicam) are not [sic] reasonable and necessary for the cure and relief of the January 30, 2003 injuries.

 

Following Dr. Choi’s denial, Plaintiff requested reconsideration. A reconsideration opinion was generated on July 28, 2009. Pursuant to the opinion of Dr. Hyung Kim, a board certified pain management physician, Plaintiff’s current prescription medication regime of Hydrocodone, Endocet, and Oxycontin are not medically necessary or appropriate. Dr. Choi deferred the appropriateness of Temazepam, a medication prescribed for insomnia, to the opinion of a psychiatrist. Concerning the prescription for Keppra and Cymbalta which are purported [sic] being prescribed for neuropathic pain, Dr. Kim felt these as currently prescribed do not met [sic] the threshold for medical necessity. Concerning the Metaxalone (generic Skelaxin) he did not feel this medication was medically necessary. Finally, regarding the anti-inflammatory medication as Dr. Aggarwal does not document whether or not Meloxicam is being prescribed because of concerns over GI side effects associated with non selective NSAIDs, there was no clear documentation Plaintiff had a history of a gastrointestinal disorder for which Meloxicam would be reasonable and necessary. As such, he felt Meloxicam was not medically reasonable and necessary.

 

          In the March 18, 2010, Opinion and Order, Hon. Lawrence F. Smith, Administrative Law Judge (“ALJ Smith”) determined the contested medical treatment is reasonable, necessary, and work-related, concluding as follows:

With regard to necessity and reasonableness, the treating physician, a well-respected member of the medical community, has continually provided a course of treatment that she feels is necessary for her patient’s relief. The petitioner’s experts are just as well-respected and just as highly trained. Based on one doctor’s examination of the respondent and two doctors’ review of her records, the petitioner’s physicians have asserted that the provided medical treatment is not necessary and reasonable.

 

However, I note that they do not have as their responsibility, the continuing welfare of this patient. They have not had the opportunity to follow this patient’s progress or lack of progress as Dr. Aggarwal has. To this Administrative Law Judge, the preponderance of the evidence weighs in favor of the respondent and her physician. Her pain has its origin in the 2003 work injury. This ALJ will [sic] substitute his judgment for that of the treating physician. I therefore find the prescriptions both reasonable and necessary.

 

With regard to work-relatedness, each of the petitioner’s physicians disagrees with the diagnoses upon which ALJ Steen relied in assessing the respondent’s impairment rating. In this instance I must agree with the respondent that res judicata applies. Moreover, the respondent’s physician testified that she is treating the effects of the respondent’s work injury. Again, she has the benefit of many years of consistent, ongoing interaction with her patient. There is also no evidence of an independent intervening cause of harm. I therefore find that Dr. Aggarwal’s treatment plan, the objected-to prescriptions, continue to be work-related.

          Meade County filed a petition for reconsideration requesting ALJ Smith, among other things, issue an Order on Reconsideration concluding Prather has no psychological work injury and, therefore, her psychotropic medications are non-compensable. Meade County also requested ALJ Smith set forth a finding of fact regarding the amount of narcotic medications Dr. Aggarwal is prescribing Prather.

          In the April 15, 2010, Order on Petition for Reconsideration, ALJ Smith determined as follows:

     . . .

     The petitioner first asserts as error that the Opinion failed to address the issue argued in the petitioner’s brief, whether the respondent “has any work-related psychological injury and, if so, whether KRS 342.270 serves to bar compensability for that injury.” The respondent answers that the petitioner’s petition constitutes an attempt to re-argue the merits of the claim.

     The Agreed Order signed by all parties and dated January 4, 2010 states, “The contested issues are the reasonableness and necessity and work relatedness of prescription medications from Dr. Aggarwal.” That is the issue addressed by the Opinion and Order. Whether the respondent had a work-related psychological injury was not the issue before this ALJ.

Despite my finding that Dr. Aggarwal’s prescription regimen is reasonable, necessary and work-related, however, I agree that it is necessary to fully address the issues relating to the respondent’s psychological claim. This ALJ notes that the respondent made a psychological claim in her original compliant, but she abandoned that claim prior to Judge Steen’s Opinion, Order and Award on October 26, 2005. I find based on the evidence that the respondent does not have a work-related psychological disability.

However, Dr. Cooley, a physician evaluating on behalf of the petitioner, indicated that treating the respondent with Cymbalta was medically appropriate, since Cymbalta is commonly used in patients who have chronic pain and depression. The Opinion noted also that the respondent is allergic to Neurontin. Additionally, Dr. Cooley’s report indicated that being dragged back into administrative court provided a significant stressor upon the respondent, “after I thought I had retained my medicals.” (Slip Op. at 10, quoting Dr. Cooley’s IME, quoting the respondent). As stated in the Opinion, the preponderance of the evidence weighs in favor of the respondent and her physician on the question whether the prescription regimen ordered by Dr. Aggarwal was reasonable, necessary and work-related as to all the medications, including Cymbalta.

Next the petitioner asserts that Dr. Aggarwal prescribed Cymbalta primarily as an anti-depressant, so the petitioner should not be required to pay for it. Although Dr. Aggarwal testified that she prescribed Cymbalta to the respondent primarily as an anti-depressant and that the neuropathic benefits were a bonus, she also testified, as noted in the Opinion, that without Cymbalta, the Keppra would “help.” (Slip Op. at 5) Dr. Aggarwal testified that it would help, not that it would work. Again, Dr. Cooley agreed that Cymbalta contributes to the relief of neuropathic pain. As stated in the Opinion, I am more persuaded by Dr. Aggarwal’s “years of consistent, ongoing interaction with her patient.” (Slip Op. at 17) I find no error on this point, and therefore the petition is OVERRULED.

Next the petitioner asserts that “no reasonable person would conclude that this Respondent’s narcotic prescription regime is reasonable and necessary for the cure and relief of the effects of the January 2003 injuries.” As stated in the Opinion, Dr. Aggarwal explained how it was reasonable and necessary, and this ALJ was persuaded by that explanation. I find no error on this point, and therefore the petition is OVERRULED.

Finally, the petitioner asserts that the Opinion’s reference to res judicata was not an issue preserved for the ALJ’s consideration, because the petitioner has never argued that the respondent never sustained compensable lumbar or right knee injuries in 2003. As summarized in the Opinion, two of the petitioner’s physicians, Drs. Choi and Kim, expressed doubt whether the respondent sustained serious injuries in 2003.

The petitioner’s third physician, Dr. Schiller, specifically stated that he disagreed with the diagnosing physicians regarding the respondent’s original lumbar condition. Although the petitioner does not argue that the respondent sustained minimal or no injury, the petitioner’s doctors make that claim. This is part of what made their opinions less persuasive to this ALJ than the opinions of Dr. Aggarwal. I find no error on this point, and therefore the petition is OVERRULED.

          No appeal was taken from ALJ Smith’s decision.

          On March 31, 2016, Meade County filed a Motion to Reopen and Medical Fee Dispute, describing the nature of the dispute as follows:

1. Ms. Teresa Prather sustained injuries to her right knee and lumbar spine during her employment with Meade County Board of Education occurring on January 30, 2003. Pursuant to the Opinion and Award, rendered on October 26, 2005, injuries to Respondent’s right knee and lumbar spine were found compensable. Respondent was awarded indemnity benefits and medical benefits for the same pursuant to KRS 342.020. Respondent’s alleged cervical injury and psychiatric condition were found non-compensable.

 

2. Respondent has been treating with Dr. Rinkoo Aggarwal every two to three months since 2005. Dr. Aggarwal has diagnosed Respondent with lumbago, myofascial pain, neck pain, insomnia, and a cervical sprain/strain. Dr. Aggarwal has continuously prescribed Respondent medications, including Cymbalta, Hydrocodone APAP, Lyrica, OxyContin, Percocet, and Skelaxin. Dr. Aggarwal has also provided Respondent a TENS unit.

 

3. Dr. Richard Sexton performed an Independent Medical Evaluation on January 26, 2016. Dr. Sexton found no evidence of injuries to Respondent’s back or knee. Dr. Sexton diagnosed Respondent with a contusion of the knee, resolved, lumbar strain, resolved, and medication abuse. Dr. Sexton found that Respondent has received unnecessary treatment as she no longer has any serious pain producing injuries. Respondent reached MMI in 2004. He indicated that Respondent’s subjective complaints of pain do not correspond with her objective findings.

 

4. Utilization Review was subsequently performed by Dr. Rademaker on February 8, 2016. He also concluded Respondent’s complaints do not correlate with the objective medical findings. Dr. Rademaker concluded OxyContin, Hydrocodone alternating with Oxycodone, Lyrica, Metaxalone, Ambien, Cymbalta, a TENS unit and follow-ups every 2 to 3 months are not reasonable or necessary.

 

5. Respondent appealed the denial of her medications. Dr. Schmidt performed Utilization Review on appeal on March 1, 2016. Dr. Schmidt also concluded that treatment including prescription OxyContin, Hydrocodone alternating with Oxycodone, Lyrica, Metaxalone, Ambien, Cymbalta, a TENS unit, and follow-ups every two to three months is unreasonable or unnecessary.

 

Specifically, Dr. Schmidt noted that medical records do not document improved pain and functioning from opioid medications. Respondent continues to report her pain as a 7/10. Additionally, there is no improved functioning, such as range of motion, strength, endurance, ambulation, or activities of daily living. As a result, Dr. Schmidt recommended Respondent be weaned from her opioid medications.

 

Lyrica is used for neuropathic pain, which is not documented in the records; therefore, Dr. Schmidt found this medication to be unreasonable and unnecessary.

 

Metaxalone is a muscle relaxer, which is recommended for short term use for treatment of acute musculoskeletal pain or for short term treatment of acute exacerbation. Muscle relaxers are not indicated for long term use. Dr. Schmidt concluded Metaxalone is unreasonable and unnecessary and recommended Plaintiff be weaned from the same.

 

Ambien is a sleep medication, which is recommended for short term use of insomnia. This medication is not indicated for long term use. Dr. Schmidt concluded Ambien is unreasonable and unnecessary and recommended Plaintiff be weaned from the same.

 

Cymbalta treats neuropathic pain, which is not documented; therefore, Dr. Schmidt found this medication to be unreasonable and unnecessary.

         

Dr. Schmidt also concluded the TENS unit is not reasonable and necessary as records do not document improved pain and/or functioning as a result of the TENS unit. Furthermore, there are no short or long term goals of treatment with the TENS unit.

 

Lastly, Dr. Schmidt noted that continued follow-up is indicated when reasonable and necessary and to wean Respondent from medications. However, continued follow up afterwards is not necessary.

 

6. The Movant/Employer respectfully submits there is no reasonable medical reason why Respondent requires the above treatment, provided by Dr. Aggarwal as related to the work event. The Movant/Employer respectfully requests the Administrative Law Judge to issue an Order concluding that prescription medications, including OxyContin, Lyrica, Metaxalone, Ambien, Cymbalta, as well as a TENS unit and follow-up appointments every two or three months is unreasonable and unnecessary for treatment of Respondent’s work injury pursuant to the opinions of Dr. Sexton, Dr. Rademaker, and Dr. Schmidt.

 

In her April 4, 2016, Response to Motion to Reopen, Prather asserted the March 18, 2010, Opinion and Order of ALJ Smith “is res judicata and should not be relitigated.”

Prather introduced the May 2, 2016, report of Dr. Rinkoo Aggarwal which reads as follows:

This is regarding the the [sic] utilization review done by Dr. Rebecca Schmidt regarding denial of ALL of Mrs. Teresa Prather’s (DOB 9-14-59) medications for her work injury (January 30, 2003). Letter was dated March 2, 2016.

The last denial of patient’s medications occurred in July 2009. At that time I wrote a letter of appeal and eventually the denial was overturned. I find that seven years later we are back on this issue again.

 

I first evaluated Mrs. Teresa Prather April 2005 when I learned she was involved in a work related injury in January 2003. She had already been declared at maximum medical improvement and given an impairment rating by Dr. Chou. She was referred to our office for pain management. Prior to this, she had been seen by a Neurosurgeon, Dr. Clark Bernard, who did not feel she was a surgical candidate. Patient subsequently underwent epidural injections without any relief, and eventually it was felt that she had a chronic injury due to her January 30, 2003 work injury and referred for Pain Management.

 

Dr. Chou evaluated the patient on July 27, 2004, and gave her a 12% whole person impairment rating, which included 5% lumbar impairment, 10% cervical impairment, and 2% impairment for the knee. These translated to a total of 12% whole person impairment. It was felt she was at Maximum Medical Improvement (MMI) and had a permanent impairment. This means she sustained a lifelong injury that will never go away or get better.

 

Dr. Rebecca Schmidt (the reviewer with Bluegrass Health Network, Inc.) recommends getting rid of all my patients medications. This is unreasonable and wrong. Dr. Schmidt argues that my patient does not need Cymbalta because it is indicated for neuropathic pain and that my patient does not have neuropathic pain. Cymbalta is also indicated for chronic musculoskeletal pain. She argues that Lyrica is also not necessary because it is indicated for neuropathic pain. Lyrica is commonly used for chronic pain syndromes to decrease overall pain burden. She argues that my patient should not be treated with Muscle relaxants such as Metaxalone because they are only recommended for short term treatment for acute exacerbation of musculoskeletal pain. That is EXACTLY why this patient is using this medication. My patient does NOT use it every day. If you look at when her prescriptions are filled, it is easy to see that she uses it for short-term relief of acute exacerbations of musculoskeletal pain. My records show she received a three month supply in May 2015 and she [sic] lasted it [sic] approximately NINE MONTHS and then in February 2016 received another three-month supply. This shows definitively she could not possibly be using it every day…and is in fact using it for acute exacerbations of her chronic injuries. The reviewer also argues that sleep medications are not indicated for long-term use. Most sleep aids are not recommended for long-term use but Ambien CR is different in that it is approved for long-term use of [sic] insomnia. This patient is on Ambien CR 12.5 mg nightly. Her insomnia is directly related to her chronic pain issues and is necessary for her to function in her daily life.

 

The reviewer further argues that Mrs. Prather’s TENS unit is not medically reasonable or necessary for the cure and/or relief of her work injury. The indication of a TENS unit is EXACTLY what this patient uses it for; the symptomatic relief and management of chronic long term pain. This device is absolutely acceptable for Mrs. Prather to use. I have been seeing this patient for 11 years, and we don’t document on EVERY single visit weather [sic] the tens unit is helping her as the reviewer argues. It is overall a very beneficial device for Mrs. Prather and another avenue for my patient to obtain pain relief.

 

The review [sic] also recommends getting rid of all Mrs. Prather’s pain medication (Oxycontin, hydrocodone alternating with oxycodone). Patient’s opioid medications do improve her functionality and her ability to do household tasks as well as tasks outside the home. It helps her to do her chores at home such as washing dishes, doing laundry, vacuuming, cooking, doing activities with her grandchildren, as well as any grocery shopping, etc….Office notes do document pain relief with and without opioid medication and it is well documented that her medications improve her quality of life. Normally her pain meds decrease her pain to 2-3/10 on good days when she is not overly active, but on her physically active days, her pain relief is less (7/10 VAS). This could be a tolerance issue that we have been discussing with the patient. But regardless of tolerance, without pain medications, this patient would not be able to complete her daily home chores (and functional tasks), would have difficulty with her ADLs (activities of daily living), and overall have NO quality of life.

 

Dr. Schmidt argues that follow up every 2-3 months is not medically reasonable for this patient’s work injury. My office follows the guidelines of House Bill 1 passed in Kentucky on April 2012 for office visits and drug screening for patients on opioid or controlled medications.

 

The reviewer recommends that Mrs. Prather be weaned off ALL her medications. Once that is done, then what? What management options has the reviewer given – NONE! If this patient weans off all her mediations she will have no quality of life. I would like to add that this reviewer has never once met, examined, or questioned Mrs. Prather about her work injury. All her information is based on medical records. What happened to Mrs. Prather is of no concern to Dr. Schmidt. She has completed her report on Mrs. Teresa Prather and is on to her next case. She does not have to ‘deal with’ Mrs. Prather again. I, on the other hand, have taken care of this patient for the last 11 years. I will have to figure out how to help this kind lady once this is all said and done.

 

The reviewer also feels that once all the patient’s medication [sic] have  been weaned that Mrs. Prather does not need any further ‘management’ for her January 30, 2003 work injury. My question to Dr. Schmidt is what happens after [sic] patient’s medications are weaned? What is this patient to do for her chronic pain symptoms? This recommendation by the reviewer is overall unjust and medically unethical. This patient has a permanent injury! She will need lifelong management of that injury! She was placed at maximum medical improvement (meaning that she will never get any better) and given an impairment rating for that very reason! This is not going to just ‘go away’.

 

On January 30, 2003, Mrs. Teresa Prather sustained a permanent injury that will need medical management for the rest of her life. Getting rid of all her medications and ‘forgetting about her’ is not the answer. Dr. Schmidt’s utilization review on this patient is flawed and ethically wrong. Following these recommendations would set a terrible precedent and cause a moral dilemma towards the treatment of this kind lady who did not ask to be injured. In my opinion, this utilization review is flawed and grossly favors the Workman’s Comp. carrier (KEMI) and undermines their financial responsibilities toward Mrs. Prather.

On August 1, 2016, Meade County filed an “Additional Medical Fee Dispute” asserting:

The Movant/Employer has filed a Form 112 medical fee dispute contesting treatment provided [sic] Dr. Rinkoo Aggarwal, including prescription OxyContin, Hydrocodone alternating with Oxycodone, Lyrica, Metaxalone, Ambien, Cymbalta, as well as a TENS unit and follow-up appointments every two to three months as unreasonable and unnecessary for treatment of Respondent’s work injury pursuant to the medical opinions of Dr. Schmidt and Dr. Lyon.

 

The Movant has since received a medical bill from Southwest Laboratory for a May 26 [sic], 2016 date of service. This statement for services is attached as Exhibit 1. Pursuant to KRS 342.020 ‘[t]he provider of medical services shall submit the bills within forty-five (45) days of the day treatment is initiated’. The signature of South West [sic] was provided on May 26, 2016. The medical bill was not submitted to the Movant until July 25, 2016. This bill was submitted over 45 days after the treatment was initiated, which violates the parameters of KRS 342.020. Furthermore, no medical records were provided with the HCFA; therefore, a complete statement for services has not yet been received violating the requirements of KRS 342.020. As a result, the bill from Southwest Laboratory for a May 26 [sic], 2016 date of service is untimely submitted and should be found not compensable pursuant to KRS Chapter 342.

 

Furthermore, following his April 21, 2016 evaluation, Dr. Lyon concluded the treatment provided by Dr. Aggarwal was unreasonable and unnecessary. Specifically, he recommended that Plaintiff be weaned from opiates, narcotics, Lyrica, Skelaxin, and Ambien. Pursuant to the report of Dr. Lyon, this apparent outside laboratory urine drug screen is unreasonable and unnecessary. Dr. Lyon’s report is attached as Exhibit 2.

 

The Movant received an incomplete statement for services from Southwest Laboratory for a May 26 [sic], 2016 date of service on July 25, 2016. This bill should be found not compensable pursuant to KRS Chapter 342. Furthermore, Dr. Lyon has concluded that treatment provided by Dr. Aggarwal, including Plaintiff’s opiates and narcotic medications, are unreasonable and unnecessary. The Movant/Employer respectfully requests the Administrative Law Judge to issue an order concluding the July 25, 2016 HCFA is non-compensable pursuant to KRS Chapter 342 and the report of Dr. Lyon. 

          The Telephonic Benefit Review Conference (“BRC”) Order dated September 21, 2016, lists the following contested issues:

The issue(s) to be determined are they [sic] not medically necessary for [sic]: Oxycodone, Oxycontin, Lyrica, Metaxalone, Ambien, Cymbalta and TENS Unit; Follow-up office visits every 2 to 3 months, urine drug screening, and Res Judicata and potential sanctions for a repeated challenge to the prescriptions at issue, filing of more than two medical reports.

In the November 23, 2016, Opinion and Order, the ALJ provided, in relevant part, the following findings of fact and conclusions of law:

. . .

The Defendant Employer has moved to reopen this claim to challenge the reasonableness and necessity of Oxycodone, Oxycontin, Lyrica, Metaxalone, Ambien, Cymbalta, TENS unit; follow up office visits every 2 to 3 months, urine drug screening, res judicata and potential sanctions for a repeated challenge to the prescriptions at issue. After review of the evidence, it is determined that the opinion of Dr. Aggarwal is persuasive in that current treatment is reasonable and necessary for the cure and/or relief of the work injury and that res judicata applies with respect to the Opinion and Order issued by ALJ Lawrence Smith in 2010.

 

          Meade County filed a petition for reconsideration asserting, among other errors, that the ALJ erred by determining res judicata is applicable to the current medical fee dispute and potential sanctions for a repeated challenge to the contested medical treatment. Meade County also asserted the ALJ failed to set forth any findings regarding the compensability of the May 12, 2016, urine drug screen.

In the January 19, 2017, Order on Reconsideration, the ALJ set forth the following additional findings:

     This matter is before the ALJ upon Motion of the Defendant seeking additional findings regarding the ultimate conclusion and "analysis" used to determine that the medication regimen of the Plaintiff is reasonable and necessary and that res judicata applies. The following additional findings are hereby entered in to record:

     1. The ALJ is persuaded by the sincere plea made by Dr. Aggarwal as to how the Plaintiff's pain may be controlled in the absence of the medications that have been prescribed. Dr. Aggarwal has been treating the Plaintiff for pain since April of 2005 and has reviewed the opinions of other doctors that are critical of his care. Dr. Aggarwal noted that injections were not helpful and that the Plaintiff is not a surgical candidate. Dr. Aggarwal is therefore persuasive in his obvious quest to control the Plaintiff's pain and correctly notes that none of the other opinions offer a satisfactory solution.

     2. Dr. Aggarwal was convincing in his assessment that the Plaintiff has sustained a lifelong injury that will not go away or get better and that the approach of Dr. Schmidt who recommended ceasing all medication is unreasonable and wrong. Dr. Aggarwal offered a convincing point by point refutation of the opinions of Dr. Schmidt that was persuasive, well stated, and constitutes substantial support for the reasonableness and neccessity of the entire course of treatment at issue. The convincing nature of these opinions is buttressed by the obvious basis in actual observation and examination as opposed to the standard records review.

      3. Dr. Aggarwal was also convincing and persuasive in the listing of the actual activities and functionality made possible by the Plaintiff's opioid medications including; washing dishes, doing laundry, vacuuming, grocery shopping, and activities with her grandchildren.  This demonstrates pain relief and functional improvement which other reviewers have deemed not to be present in this patient.

     4. With respect to the doctrine of res judicata, the Petition argues that this is now a different issue due to the passing of time and thus the doctrine does not apply.  The opinion of Dr. Aggarwal upon which the ALJ relies, is in direct contrast to that "theory" and the ALJ reiterates that the doctrine applies but in the alternative offers that the foregoing analysis is sufficient to support the finding of reasonableness and necessity. The Petition is therefore DENIED.

 

Meade County first asserts the ALJ erred in finding ALJ Smith’s March 18, 2010, Opinion and Order is res judicata concerning issues raised in this medical dispute. We agree; however, the ALJ’s conclusion regarding res judicata is harmless error, as substantial evidence supports the ALJ’s conclusion the contested medical treatment, excluding the May 12, 2016, urine drug screening, is compensable. In the January 19, 2017, Order, the ALJ clearly delineated his reliance upon Dr. Aggarwal’s opinions as a basis for his decision concerning the contested medications, TENS unit, and office visits.

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).  It is well-settled that the doctrine of res judicata applies in the context of workers’ compensation awards.  Keefe v. O.K. Precision Tool & Die Co., 566 S.W.2d 804, 805 (Ky. App. 1978).  However, res judicata has limited effect in medical fee disputes, because medical benefits necessarily relate to an employee’s evolving physical condition. 

          KRS 342.125 provides specific and enumerated statutory exceptions to the general rule of the finality of judgments, also known as res judicata.  In order to qualify for reopening under the Act, there must be facts alleged sufficient to make a prima facie case for reopening pursuant to one of the conditions specified under KRS 342.125.  Stambaugh v. Cedar Creek Mining Co., 488 S.W.2d 681 (Ky. 1972).   Where the Act expressly provides for the reopening of a prior decision on specified conditions, the rule of res judicata has no application when the prescribed conditions are present.  Id. at 682. 

          KRS 342.125(3) permits reopening for a determination of the compensability of medical expenses.  Consequently, the doctrine of res judicata does not apply.  In Napier v. St. Paul Travelers, et al, 2010-CA-001825-WC, rendered February 3, 2012, Designated Not To Be Published, one of the issues before the Court of Appeals was the Board’s determination that Phenergan was compensable based on law of the case since there had been a previous order finding Phenergan was a compensable medication.  The Court of Appeals rejected that principle, holding as follows:

Travelers and KIGA contend that the Board's decision that Phernergan was compensable based on the law of the case doctrine was erroneous. They argue that each medication must be evaluated anew if contested, because medications may not always be a necessary treatment for a work-related injury.

We first observe that the June 23, 1997 order, cited as controlling by the Board was not reviewed by the ALJ because the parties did not designate the evidence to be reviewed by the ALJ in accordance with 803 KAR 25:010 § 4(6). We further note that the law of the case doctrine applies differently in a workers' compensation action compared to a judicial action. Whittaker v. Reeder, 30 S.W.3d 138, 143 (Ky. 2000). Therefore, legal authority based upon judicial proceedings is not necessarily binding in a workers' compensation case. Id.

When a change of condition occurs, a case may be reopened to decide if a previous award should be modified. Id. In this case, Napier's case was reopened and she requested additional treatment, and the insurance company contested the continuation of previously awarded prescription treatments. Based on the evidence, the ALJ found that Phenergan was no longer compensable.

Slip Op. at 6.

          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, supra. 

          Since Meade County bore the burden of proving the contested treatment is neither reasonable nor necessary and it did not sustain its burden, 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).

          Significantly, in both its brief to the ALJ and its brief to this Board, Meade County states it is not contesting Prather’s original diagnoses relied upon by ALJ Steen in the October 26, 2005, Opinion and Order. In its brief to the ALJ it represented: “The Defendant acknowledges that Plaintiff sustained a compensable injury to the right knee and lumbar spine and is not arguing to the contrary. Rather, the Defendant is contesting Plaintiff’s individual prescription medications based on the reasonableness and necessity of the same.” We also note the medical treatment contested in the medical fee dispute at issue does not duplicate the August 6, 2009, medical fee dispute in its entirety.^[2]  Res judicata has no applicability in the resolution of Meade County’s medical fee disputes. Thus, the ALJ’s conclusion res judicata is applicable to “potential sanctions for a repeated challenge to the prescriptions at issue” is error. However, since the ALJ imposed no sanctions, this conclusion is also harmless error.                                    

          Contrary to Meade County’s assertions in its second argument on appeal, the May 2, 2016, report of Dr. Aggarwal comprises substantial evidence in support of the ALJ’s determination that the contested medications, TENS unit, and office visits are compensable. “Substantial evidence” is defined as evidence of relevant consequence having the fitness to induce conviction in the minds of reasonable persons. Smyzer v. B. F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 1971).  In the May 2, 2016, report, Dr. Aggarwal addressed each of the contested medications, as well as the TENS unit and appointments every 2-3 months. Even though contrary medical evidence is present in the record, the ALJ was not required to rely on this evidence and, instead, may rely upon Dr. Aggarwal’s report. See McCloud v. Beth-Elkhorn Corp., supra.  The ALJ’s finding that the contested medical treatment is compensable, with the exception of urine drug screenings, will not be disturbed.

          In response to Meade County’s third argument on appeal, we note the ALJ failed to address Meade County’s August 1, 2016, “Additional Medical Fee Dispute” contesting its liability for the May 12, 2016, urine drug screening performed by Southwest Laboratory. Consequently, the ALJ’s determination the “urine drug screenings” are compensable is vacated. The claim will be remanded for additional findings relative to this issue.

          In its August 1, 2016, “Additional Medical Fee Dispute,” Meade County contested the compensability of the May 26, 2016, medical bill by Southwest Laboratory. Attached to the medical fee dispute is a “Health Insurance Claim Form” dated May 26, 2016, for a total charge of $9,642.51 from Southwest Laboratory. Meade County asserted it did not receive the bill until July 26, 2016, thus implicating the 45-day rule as set forth in KRS 342.020(1) and promulgated via 803 KAR 25:096(6). While we have held the 45-day rule for submission of statements for services in KRS 342.020(1) has no application in a pre-award situation, it certainly is applicable post-award.

          In the November 23, 2016, Opinion and Order, the ALJ seems to resolve the issue of “urine drug screening” in a general sense, but fails to address the May 12, 2016, drug screening performed by Southwest Laboratory, the subject of Meade County’s August 1, 2016, “Additional Medical Fee Dispute.” Despite Meade County’s request for findings in its petition for reconsideration, the ALJ did not address the May 12, 2016, urine drug screening and the May 26, 2016, statement in the January 19, 2017, Order on Reconsideration.

          On remand, the ALJ must address the argument made by Meade County concerning the alleged untimely submission of the May 26, 2016, statement for services from Southwest Laboratory for a urine drug screening performed on May 12, 2016, and determine, based on the evidence in the record, whether Southwest Laboratory has fulfilled the mandates of KRS 342.020(1). If the ALJ determines Southwest Laboratory has not complied with the 45-day rule as set forth in KRS 342.020(1), he must then, based on the evidence in the record, determine whether the delay was “reasonable.” 803 KAR 25:096(6). Should the ALJ determine the delay in submitting the medical bill was not reasonable or should the ALJ determine there is not enough evidence in the record addressing this issue, the medical bill “shall not be compensable.” 803 KAR 25:096(6). Should the ALJ, based on the evidence in the record, determine the delay is indeed “reasonable,” the ALJ must then determine if urine drug screening is reasonable and necessary and cite all supportive evidence for this determination.

          Accordingly, the ALJ’s determination the contested medical treatment consisting of the prescription medications, TENS unit, and office visits is reasonable and necessary, the November 23, 2016, Opinion and Order and the January 19, 2017, Order on Reconsideration are AFFIRMED. The ALJ’s determination regarding the compensability of “urine drug screening” is VACATED. This claim is REMANDED to the ALJ for additional findings regarding the compensability of the May 12, 2016, urine drug screening performed by Southwest Laboratory in accordance with the views set forth herein. Finally, the ALJ’s determination regarding “potential sanctions for a repeated challenge to the prescriptions at issue” is VACATED.       

          ALL CONCUR.

COUNSEL FOR PETITIONER:

HON WHITNEY M KUNJOO

333 W VINE ST STE 1100

LEXINGTON KY 40507

COUNSEL FOR RESPONDENT:

HON NEIL S WEINER 1387 S FOURTH ST LOUISVILLE KY 40208 RESPONDENT:   DR RINKOO AGGARWAL 1170 E BROADWAY STE 100 LOUISVILLE KY 40204

ADMINISTRATIVE LAW JUDGE:

HON JONATHAN R WEATHERBY

657 CHAMBERLIN AVE

FRANKFORT KY 40601