*/
Workers’
Compensation Board
OPINION
ENTERED: September 15, 2017
CLAIM NO. 200593747
DORSE SULLIVAN PETITIONER
VS. APPEAL FROM HON. CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE
JAMES RIVER COAL COMPANY
DR. SUSAN MCDOWELL
CARDINAL HILL
DR. LOUIS VASCELLO
and HON. CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
IN PART, VACATING IN PART,
AND
REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Dorse Sullivan (“Sullivan”) seeks review of the April 21, 2017, Opinion and
Order of Hon. Chris Davis, Administrative Law Judge (“ALJ”) resolving a medical
fee dispute filed by James River Coal Company (“James River”) relating to
various medical procedures and prescription medications. The ALJ determined three opioids, Methadone,
Oxycodone, and Tramadol, along with Omeprazole and Mexiletene were non-compensable. The ALJ also determined lumbar facet
rhizotomies, ischial bursa injections, implantation of a spinal cord
stimulator, and an intrathecal pain pump were non-compensable. However, the ALJ found Lamictal, Gabapentin,
Dantrolene, and Nortriptyline were work-related, reasonable, and necessary
treatment and, therefore, compensable.
Sullivan also appeals from the April 5, 2016, Order overruling his
petition for reconsideration.
On appeal, Sullivan contends the ALJ erred in finding the
opioids, lumbar facet rhizotomies, and ischial bursa injections non-compensable.
The record contains a Form 110, Agreement as to
Compensation and Order Approving Settlement, approved by Hon. Shelia Lowther,
Administrative Law Judge on October 30, 2017.
The Form 110 reveals Sullivan was injured on February 16, 2005, when he
was “struck on the head and back by falling rock.” Only one impairment rating, 62% assessed by Dr.
Susan McDowell, was listed in the agreement.
The noted diagnosis is: “T11-12 fracture dislocation with resultant
spinal cord injury, paraplegia, reactive depression, neurogenic bowel/bladder,
neuralgia, spasticity, chronic back pain, sexual dysfunction and
infertility.” Pursuant to the settlement
agreement, Sullivan received temporary total disability (“TTD”) benefits from
February 17, 2005, through November 6, 2007.
Thereafter, Sullivan receives, pursuant to an annuity contract purchased
by James River, $2,200.00 per month for 398 guaranteed payments extending until
Sullivan reaches the age of 67 on December 7, 2040. As part of the settlement agreement, Sullivan
waived his right to vocational rehabilitation benefits and to reopen seeking
additional income benefits. James River
agreed to remain responsible for all reasonable and necessary medical
expenses.
On September 21, 2015, James River filed a motion to
reopen, a Form 112 medical fee dispute, and motion to join Dr. McDowell and
Cardinal Hill as parties to the dispute.
Relying upon the report of Dr. Leon Ensalada, James River contended
the narcotic medication Sullivan was taking “poses a clear and present danger
to [Sullivan’s] life,” and are not reasonable and necessary treatment of the
work injury.
On October 14, 2015, James River filed an amended medical
fee dispute based upon the opinions of Dr. Ensalada contesting the
reasonableness and necessity of bilateral lumbar facet rhizotomies and ischial
bursa injections. James River attached
Dr. Ensalada’s September 15, 2015, report to the amended Form 112. On that same date, James River filed the July
30, 2015, report of Dr. Ensalada, referenced in its motion to reopen and the
Form 112, which also addressed the reasonableness and necessity of the
non-opioid medications prescribed by Dr. McDowell.
By Order dated October 21, 2015, Hon.
William J. Rudloff, Administrative Law Judge (“ALJ Rudloff”), sustained James
River’s motion to reopen. ALJ Rudloff
also joined Dr. McDowell and Cardinal Hill as parties. The claim was subsequently reassigned to the
ALJ.
On January 14, 2016, Sullivan filed
the November 11, 2015, report of Dr. McDowell with the University of Kentucky
Department of Physical Medicine and Rehabilitation.
On April 5, 2016, the ALJ entered the following order:
This matter having come before the
Administrative Law Judge following a scheduled telephonic benefit review
conference with the parties the matter stands submitted as of the date entered
below on the issue of the resonableness and necessity and workrelatedness of
Tramadol, Cialis, Dantrolene, Gabapentin, Lamictal, Diclofenac, Omeprazole,
Methadone, Mexiletene, Nortriptyline, Oxycodone, Lidoderm bilateral lumbar
facet rhizotomies and ischial bursa injections.
On
April 27, 2016, the ALJ entered the following order:
This matter comes before the
Administrative Law Judge following a telephonic status conference with the
parties and upon Joint Oral Motion of the Parties. This is a complex medical
fee dispute involving a man with a very serious work-related injury who also
takes an undisputedly high volume of medications. In order to provide this
claim with the most thorough possible proof and evidence the parties desire the
claim to be removed from submission. As such the Motion is SUSTAINED. The
matter is removed from submission and the parties are granted an extension of
proof time. Either party may move to set a TBRC when appropriate.
On June 17, 2016, James River filed the June 8, 2016, report
of Dr. Timothy Kriss addressing the reasonableness and necessity of the
medications and procedures in question.
On June 27, 2016, James River filed a motion to join Dr. Louis
Vascello as a party and a Form 112 contesting his recommendation for a spinal
cord stimulator and a psychological evaluation prior to implantation of the
spinal cord stimulator. Attached to the
Form 112 is the report of Dr. William Baumgartl addressing the reasonableness
and necessity of the implantation of a spinal cord stimulator and the
psychological evaluation.
On July 25, 2016, the ALJ entered an order joining Dr.
Vascello as a party to the proceedings.
Sullivan filed the December 14, 2016, report of Dr.
McDowell which responded to the opinions expressed by Dr. Kriss.
The ALJ conducted a hearing on February 22, 2017. At the hearing, the ALJ stated as follows:
Judge Davis: Okay. Thank you. We
discussed the claim prior to going on the record today. We completed an updated
BRC Order. Really, that’s just to affirm that the BRC Order that we did,
because it was more than a year ago, is still applicable, though. But – But we’re – We did go over all that
again very carefully. We’re satisfied with that. We went over the...the proof
in the record as well, everybody’s satisfied with that. Plus, it will also be
on the hearing order that you’ll be able to look at and we can say if it’s
wrong before we leave today. We need to do that as well.
Significantly, we find no updated BRC
Order in the record identifying the contested issues to be decided. As alluded to by the ALJ and as set forth
herein, the only order in the record identifying the medications and medical
procedures subject to this medical fee dispute is contained in the April 5,
2016, BRC Order. Further, there is no
order indicating, as stated in the April 21, 2017, Opinion and Order, that the reasonableness,
necessity, and work-relatedness of the spinal cord stimulator and intrathecal
pain pump were subject to this medical dispute.
In fact, we find nothing in the record contesting the compensability of
the intrathecal pain pump. Similarly,
there is nothing in the record indicating the Lidoderm patches and Diclofenac
are no longer at issue, as stated in the April 21, 2017, Opinion and Order. We also note Dr. Ensalada’s July 30, 2015,
report filed by James River questioned the use of Cialis as a contested
medication. The April 15, 2016, Order
alluded to by the ALJ at the hearing lists the reasonableness, necessity, and
work-relatedness of Cialis as a contested issue. However, the opinion and order does not list
Cialis as a contested issue. In the
briefs to the ALJ, Sullivan addressed his use of Cialis but James River did
not. We note James River addressed the
reasonableness and necessity of the spinal cord stimulator and intrathecal pain
pump in its brief and Sullivan did not. Sullivan did not address the
reasonableness and necessity of either procedure. Since Sullivan does not assert the
work-relatedness, reasonableness, and necessity for the spinal cord stimulator
and intrathecal pain pump were not subject to dispute and James River does not
take issue with the ALJ’s statement in the opinion and order that Sullivan’s
use of Lidoderm patches and Diclofenac are not subject to the medical dispute,
we will not address the ALJ’s ruling on the compensability of these procedures
and his failure to address the compensability of Diclofenac and Lidoderm
patches. Further, since James River’s
brief to the ALJ did not address Sullivan’s use of Cialis and James River did
not file a petition for reconsideration regarding the ALJ’s failure to list
Sullivan’s use of Cialis as a contested issue and address its issue in the
April 21, 2017, Opinion and Order, we will not address the failure to address
the compensability of Cialis.
At the hearing, only Sullivan testified. He described the work
injury:
Q: All right, I gotcha. Where did the
rock hit you, if you know?
A: I guess it hit me in the back of the
head, I guess, and then just crushed me down. I was sitting on a bucket and I –
My – Which my miner was tore up, so I went to the other side and cut for
another feller. Then I came back over, they said my miner was fixed. So I went
back up and we got to the face and cut two cars (spelled phonetically) of one
side, set over, and cut one car (spelled phonetically), then the other buggy
come up, I cut it. And I was loading the back-end of it and looked back like
that there and that’s all I remember. And I started remembering the day – You
know, I thought I was still in the bed. So then I remember coming back and
where I was going. I remember putting my boots on. I remembered where I was at.
Sullivan was treated by Cardinal Hill
for fourteen days. Dr. McDowell, his treating physician since the injury,
referred him to Dr. Vascello for injections.
Sullivan credits Dr. McDowell with getting him on his feet and active
stating, “If it wasn’t for her, I don’t believe I would do… doing what I am now.” Sullivan has problems with both knees and
wears a brace for his left knee. He is
required to take Miralax for chronic constipation due to a neurogenic bowel
condition. He also takes Alfuzosin to
help with a neurogenic bladder problem.
Sullivan testified the bilateral rhizotomies helped with the discomfort
in his hips and his lower back, and he is able to sleep on his stomach. He estimated he underwent three procedures in
the last twelve years. Sullivan has not
undergone the bursa injections recommended by Dr. Vascello as they were not
approved. He believes the injections
would help the pain in his bottom because he has trouble sitting. Sullivan explained he drives sitting on a
pillow and cannot have his wallet in his back pocket when he sits. He acknowledged an attempt was made to
implant a spinal cord stimulator.
Sullivan testified that Tramadol
relieves his pain. Sullivan believes his
wife would leave him if he did not take the Cialis. He takes Dantrolene for back spasms. Sullivan testified he had been taking Gabapentin
because he could not take Neurontin as it caused dizziness. He has been switched to Galise, an extended
release medication that helps with the nerve pain in his feet. He takes Lamictal for “nerve endings.” He no
longer takes Diclofenac. He testified
that he waited almost a year before trying Methadone. Even though it helps reduce his pain, Dr.
McDowell has reduced his dosage.
Mexiletine helps with nerve spasms.
He takes Oxycodone as needed, usually one pill at bedtime, which allows
him to sleep for a couple of hours. He
has no medication for insomnia. Sullivan
testified he stays active and described his activities at home. He has maintained the same weight since the
injury.
Sullivan hoped Dr. McDowell would increase his Methadone
dosage because it helps more than the other medications. This would allow her to reduce the other
medications. However, Dr. McDowell did
not have time to reduce the other medications due to the medical dispute. He has undergone physical therapy and engages
in home exercises. The Lidoderm patches
help with the numbness in his back and bottom.
In the April 21, 2017, Opinion and Order, after summarizing
Sullivan’s testimony and the medical evidence, the ALJ provided the following
findings of fact and conclusions of law:
Regardless, in reliance on Dr. Kriss I
find the opioids, including the Methadone, Oxycodone and Tramadol to be
non-compensable.
Because of the long standing nature of the
Plaintiff’s opioid in-take it would be best if he were weaned from them rather
than cut off cold turkey. As such Dr. McDowell shall, within thirty days of the
date of this Opinion, submit a reasonable weaning plan, as to duration and
cost, or make a referral to a program that will provide the same service.
Failure to produce such a plan or referral, or failure by Mr. Sullivan to
participate, shall make the opioids automatically non-compensable. If Mr.
Sullivan does participate then at the end of the program the opioids will be
non-compensable.
Gabapentin,
Dantrolene and Nortriptyline
Pursuant to the medical payment obligor’s
primary expert, Dr. Kriss, who has already been relied upon, these medicines
are appropriate if the opioids are discontinued. Therefore they will be
compensable.
Lamictal
Dr. McDowell specifically states this
medicine is work-related and reasonable and necessary and related to the
overall comprehensive care of the Plaintiff’s spinal cord injury.
The Movant argues that this medicine is
used to treat bipolar disorder and there is no evidence in the record to
support this diagnosis.
On this medicine I will agree with Dr.
McDowell. The Plaintiff makes credible, undoubtedly credible, complaints about
how this severe injury has affected his life. That some doctors, notably the
Movant’s retained experts, differ on the correct use of this medicine, will not
sway my decision when it is being prescribed to deal with the psychological
effects of the injury.
The Lamictal is compensable.
Omeprazole
Given the sheer number of medications that
the Plaintiff takes, even without those medicines in this Opinion, and in the
evidence, that he will no longer take, he takes a large amount of prescription
medicines. This may cause GI distress.
However, as the Movant notes, there is no
evidence of work-relatedness of this medicines. Given the type of medicine it
is it would not be rational for me to infer or draw conclusions about
work-relatedness without a more specific statement.
The Omeprazole is non-compensable as not
work-related.
Mexiletine
Dr. McDowell has specifically stated this
medicine is work-related and reasonable and necessary. However, as the Movant
points out, this medicine is used to treat heart arrhythmias. Given the
Plaintiff’s original injury to his spinal cord, and with no diagnosis of any
injury to his heart, I will not find this medicine work-related without a more
detailed causal connection and explanation. Which I do not have. This medicine
is noncompensable as not work-related.
Lumbar facet
rhizotomies
I find the rhizotomies as already done to
be reasonable and necessary and work-related. Whether or not something
succeeded is not, by itself, a good indicator of whether or not it was
reasonable to try.
However, the Plaintiff reported,
contemporaneously with the rhizotomies that they didn’t help. Why he later
reported they did I cannot say. But I am more inclined to believe his
statements made at the time rather than later. Since they didn’t help future
rhizotomies will be not be compensable.
Ischial bursa
injections
It’s not so much that I am disinclined to
accept Dr. McDowell’s recommendation it’s that I have no solid proof this
condition even potentially exists to warrant these diagnostic injection [sic].
Dr. Kriss did not find any and Dr. McDowell has not adequately explained why
she thinks the condition maybe present. These injections are not compensable.
Spinal cord
stimulator
Absent other factors I would find this
compensable as a reasonable, nonnarcotic, pain control method. However the
primary treating physician, Dr. McDowell, does not believe this is reasonable
and necessary due to the InterStim device Mr. Sullivan has. Therefore it is
non-compensable.
Intrathecal
pain pump
For the reasons set forth above regarding
the opioids, and the fact that this is just another opioids delivery system,
this is non-compensable.
The order
reads:
1. The Lamictal,
Gabapentin, Dantrolene, and Nortriptyline are all work-related, reasonable and
necessary and compensable.
2. The Opioids,
intrathecal pain pump, spinal cord stimulator, rhizotomies, ischial bursa
injections, Mexiletine, and Omeprazole, are all non-compensable for the reasons
set forth above. The weaning program will be instituted as set forth above.
Sullivan filed a petition for
reconsideration taking issue with the ALJ’s statement that since Sullivan
stated contemporaneously with the rhizotomies that they did not help, future
rhizotomies would not be compensable.
Sullivan indicated this statement is a patent error and factually
inaccurate. He asserted Drs. McDowell
and Vascello noted the benefit of the lumbar facet rhizotomies, and Dr.
Ensalada expressed the opinion the lumbar facet rhizotomies were both medically
reasonable and necessary. He observed only
Dr. Kriss indicated the rhizotomies should be denied. Sullivan noted in fairness to Dr. Kriss, he
had reviewed the records spanning the years 2015 through 2016, and did not have
access to the medical treatment records for previous ten years. Sullivan asserted he had obtained significant
and sustained benefit and improved quality of life with the lumbar facet
rhizotomies which do not involve the use of opioid medications. Sullivan noted he testified to the benefits
which the rhizotomies provided. He
contends his testimony is consistent with the September 15, 2015, office note
of Dr. Vascello indicating Sullivan experienced more than 80% pain relief. Further, Sullivan contends Dr. Kriss was
confused by the pain scores which were specifically explained by Dr.
McDowell. He requested more specific
findings and a correction of this error and an order determining the lumbar
facet rhizotomies are compensable.
Sullivan also requested the ALJ reconsider his denial of the bursa
injections. He noted the ALJ stated Dr.
McDowell had not adequately explained why she thought the condition may be
present. However, Sullivan contended Dr.
McDowell had provided an explanation which he sets forth verbatim in his brief.
Since Dr. McDowell had adequately explained these diagnostic injections are
necessary in order to ensure the painful condition is treated appropriately,
Sullivan requested the ALJ’s erroneous interpretation of her opinion be
corrected.
Finally,
Sullivan took exception to the ALJ’s determination the opioids were non-compensable,
as Sullivan was left with no alternative for pain relief. Sullivan noted the lumbar rhizotomies
provided significant long-term benefit; however, since it and the pain
medications were determined to be non-compensable he is left with no alternative
for pain relief. Sullivan cited to Dr.
McDowell’s professional qualifications and the fact that she has been his
treating physician since the injury.
Sullivan requested the treatment regimen for pain relief, including the
opioids as directed by Dr. McDowell, be allowed to continue since they have
been extremely beneficial to him in the past twelve years.
In
the June 5, 2017, Order, the ALJ stated as follows:
The Plaintiff
does an excellent job of pointing out the volume of evidence which contradicts
my conclusion regarding the rhizotomies and potential explanations for why Dr. Kriss
reached the "wrong" conclusion. However the undersigned is without the
authority to reverse a factual finding that is supported by substantial evidence.
Regardless I reviewed all of the evidence, including that cited by the
Plaintiff. The Petition is OVERRULED.
On
appeal, Sullivan contends the ALJ’s determination regarding the lumbar facet
rhizotomies is not based on a correct understanding of the medical evidence. Sullivan cites to the letters of Dr. McDowell
and her explanation of the need for the rhizotomies. He notes Dr. McDowell directly addressed the
statements of Dr. Kriss, noting his opinions reflect a lack of understanding of
the complexity of Sullivan’s condition.
He posits the ALJ appears to have relied upon Dr. Kriss in stating that
since the rhizotomies did not help, future rhizotomies would not be
compensable. Sullivan asserts both Drs.
McDowell and Vascello noted the benefit of the lumbar facet rhizotomies, and
even Dr. Ensalada opined they were medically reasonable and necessary. Sullivan cites to his testimony regarding the
relief provided by the rhizotomies. Sullivan
asserts since the ALJ had an erroneous understanding of the relevant evidence,
his opinion is not supported by substantial evidence.
Sullivan also takes issue with the ALJ’s decision regarding the compensability
of the ischial bursa injections. He
notes that in her November 11, 2015, report, Dr. McDowell indicates the bursa
injections were recommended because of the location of the pain in the gluteal
area. Sullivan sets forth Dr. McDowell’s
discussion in the December 2016 report which explains the nature of the pain
Sullivan suffers including the pain resulting from a direct injury to the
spinal cord.
Sullivan argues the ALJ’s decision
regarding the ischial bursa injections was based upon the fact he found no
solid proof the condition warranting the injections existed. Noting the ALJ indicated Dr. Kriss did not
find any proof of the condition, Sullivan explains Dr. Kriss did not have the
benefit of reviewing the explanation of Dr. McDowell which indicates the
injections are a diagnostic tool to rule out inflammation versus neuropathic
pain. Sullivan argues the ALJ’s
interpretation of Dr. McDowell’s detailed report is erroneous and insufficient
to support a finding of non-compensability.
Finally, Sullivan asserts the ALJ’s
decision regarding the compensability of the opioids is not supported by substantial
evidence. Sullivan again cites to his
testimony and Dr. McDowell’s explanation.
He argues there is no question that he is on an opioid regimen for
control of his pain, and after twelve years of treatment Dr. McDowell has
determined this to be the best course of action in an attempt to control the
pain. Sullivan argues the ALJ relied
upon Dr. Kriss who provided an inadequate explanation and did not have the
benefit of Dr. McDowell’s report outlining the nature of the injury and the
problems resulting from the spinal cord injury.
Sullivan contends the report of Dr. Kriss based on a one-time evaluation
does not constitute substantial evidence supporting the ALJ’s decision.
In a
post-award medical fee dispute, the burden of proof and risk of non-persuasion
with respect to the reasonableness and necessity of medical treatment falls on
the employer. National Pizza Company
v. Curry, 802 S.W.2d 949 (
The Kentucky Supreme Court held in C
& T of Hazard v. Stollings, 2012-SC-000834-WC, rendered October 24,
2013, Designated Not To Be Published, that the burden is placed on the party
moving to reopen because it is that party who is attempting to overturn a final
award of workers’ compensation and must present facts and reasons to support
that party’s position:
The party responsible for paying
post-award medical expenses has the burden of contesting a particular expense
by filing a timely motion to reopen and proving it to be non-compensable. Crawford
& Co. v. Wright, 284 S.W.3d 136, 140 (Ky. 2009) (citing Mitee
Enterprises v. Yates, 865 S.W.2d 654 (Ky. 1993) (holding that
the burden of contesting a post-award medical expense in a timely manner and
proving that it is non-compensable is on the employer)). As stated in Larson's
Workers' Compensation Law, § 131.03[3][c], “the burden of proof of showing
a change in condition is normally on the party, whether claimant or employer,
asserting the change ....” The burden is placed on the party moving to reopen
because it is that party who is attempting to overturn a final award of
workers' compensation and thus must present facts and reasons to support that
party's position. It is not the responsibility of the party who is defending
the original award to make the case for the party attacking it. Instead, the
party who is defending the original award must only present evidence to rebut
the other party's arguments.
. . .
Thus, C & T had the burden of proof to show that Stolling's
treatment was unreasonable and not work-related.
Slip Op. at 4-5.
Since James River was successful in
its burden, the question on appeal is whether there is substantial evidence of
record to support the ALJ’s decision. Wolf Creek Collieries v. Crum, 673
S.W.2d 735 (Ky. App. 1984). “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 (
In rendering a decision, KRS 342.285
grants an ALJ as fact-finder the sole discretion to determine the quality,
character, and substance of evidence.
Square D Co. v. Tipton, 862 S.W.2d 308 (
The function of the Board in
reviewing an ALJ’s decision is limited to a determination of whether the
findings made are so unreasonable under the evidence that they must be reversed
as a matter of law. Ira A. Watson Department Store v.
We
will address the issues raised by Sullivan in reverse order. The ALJ specifically stated he relied upon
the opinions of Dr. Kriss in concluding the opioid medications were no longer
compensable. Although the ALJ did not
state whether he found the opioids were not reasonable and necessary or
work-related treatment, Dr. Kriss’ June 8, 2016, report reflects his belief the
opioids are not reasonable and necessary and needed to be discontinued as they
have no beneficial effect. Dr. Kriss
stated that on August 3, 2015, Sullivan’s pain was 7/10 and an average
long-term pain rating of 7/10 is unacceptably high for a patient taking massive
daily doses of three narcotics simultaneously.
Dr. Kriss noted Dr. Vascello stated “Neurontin, Methadone, Oxycodone,
and Ultram have minimal analgesic benefit.”
Dr. Kriss further stated that, generally speaking, “if a patient taking
three high dose narcotic opioids simultaneously long-term, and all three
narcotics together result in only “minimal analgesic benefit,” it seems rather
obvious the multiple high dose narcotics should be discontinued.” He noted Dr. Vascello recommended weaning Sullivan
off Methadone but left it up to Dr. McDowell.
Dr. Kriss also noted that on September 29, 2015, Sullivan related his
“pain meds are not as effective as they used to be.” Dr. Kriss believed this was not surprising, “because
when a patient takes three simultaneous high dose narcotics for more than a
year that patient will undergo ‘tachyphylaxis.’” He explained this occurs when
“the body ‘getting used to’ a drug such that ever-increasing dosages are
required to achieve the same clinical effect.”
Dr. Kriss believed tachyphylaxis will continue unabated, as long as
Sullivan continues to take narcotics each day and pain relief from the
narcotics continues to decrease.
Dr.
Kriss provided the following explanation:
I recommend
against continued long-term narcotic use; the ultra-high dose narcotics is not
‘working’ in terms of pain relief or improved function anyways, objectively or
subjectively.
Long-term
narcotics carry known and dosing-proportionate, duration-proportionate risks of
tolerance, dependency, addiction, tachyphylaxis, hypogonadism, depression,
over-sedation, constipation, decreased cognition, decreased immune system, pain
hypersensitization, adrenal / endocrine dysfunction, bone mineralization
losses, and other significant problems.
Mister Sullivan
already has several of these complications, including tachyphylaxis (“getting
used to” the drug, such that ever-escalating dosages are required to obtain the
same clinical effect), potential hypogonadism (decreased testosterone
production as a direction consequence of long-term opioids), physical
dependency, constipation, and possible pain hypersensitization. The risks and
complications of long-term high-dose opioids are cumulative and progressive;
they will continue to worsen as long as Mister Sullivan continues to take
narcotics.
No peer-reviewed
published large series medical study has ever shown objective improvement in
long-term function with long-term narcotics in the treatment of chronic benign
(non-cancer) pain such as that of Mister Sullivan. That is what the known
objective science currently tells us.
Dr.
Kriss opined Sullivan’s chronic pain needs to be treated with something other
than narcotics. He recommended
Sullivan’s pain control be switched to something which is safe, non-addictive,
and is medically proven effective in the treatment of chronic benign pain such
as non-narcotic medications and non-steroidal ant-inflammatory, tricyclic
antidepressant, and anticonvulsant drug classes. Dr. Kriss recommended non-narcotic pain
control and set forth the medications which would be appropriate. Dr. Kriss also set forth a schedule for the
narcotic weaning.
Sullivan’s argument to the contrary, the
opinions of Dr. Kriss constitute substantial evidence supporting the ALJ’s
determination the opioid medications are non-compensable. We also note Dr. Ensalada expressed opinions
similar to Dr. Kriss. Although the ALJ
did not specifically state that he found the opioid medications to be unreasonable
and unnecessary treatment, we conclude his stated reliance upon Dr. Kriss’
opinions demonstrates his belief the medications were no longer reasonable and
necessary treatment of Sullivan’s injury.
Thus, we must affirm the ALJ’s determination of the non-compensability
of the opioid medications.
Concerning the ALJ’s finding regarding the ischial bursa injections, we
note the ALJ stated he would not accept Dr. McDowell’s opinion since there was
no solid proof the condition potentially existed in order to warrant the
diagnostic injections. In stating Dr.
Kriss “did not find any,” we conclude the ALJ believed Dr. Kriss did not find any
proof the condition in question existed.
This is exemplifed in the report of Dr. Kriss addressing the need for
the ischial bursa injections wherein he stated as follows:
Mr. Sullivan
does not have ischial bursitis bone-based pain.
These conditions
would never permit highly anatomically-targeted deep massage by the wife, much
less subjective improvement with such massage.
Mr. Sullivan had
no tenderness of the left ischial whatsoever on examination today, which also
definitely rules out any inflammation of the ischium or its bursa.
With no clinical
evidence whatsoever of ischial bursitis or ischium bone-based pain, there is no
medically reasonable indication or medical necessity for ischial injections of
any type.
In
resolving the compensability of the ischial bursa injections, the ALJ found the
injections non-compensable based on the opinion of Dr. Kriss. Dr. Kriss expressed the opinion there is no
clinical evidence of a condition which would indicate the procedure was
medically reasonable or necessary. Since
Dr. Kriss opined Sullivan did not have a condition justifying the need for ischial
bursa injections, his medical opinion constitutes substantial evidence in
support of the ALJ’s decision and we must affirm the ALJ’s decision concerning the
compensability of the injections.
The above aside, the ALJ’s decision
regarding the compensability of future lumbar facet rhizotomies fails to cite
to the evidence in the record supporting his decision. The ALJ first concluded the previously
administered rhizotomies were reasonable, necessary, and work-related. However, the stated basis for his decision that
future rhizotomies are not compensable is that Sullivan allegedly reported
contemporaneously with the rhizotomies that they did not help. Sullivan’s testimony does not support the
ALJ’s statement. More importantly, the
ALJ failed to identify where in the record that statement by Sullivan
appears. Similarly, the ALJ did not cite
to a medical record or report attributing any such statement to Sullivan. The ALJ’s summary of Sullivan’s testimony and
the medical evidence fails to mention such a statement by Sullivan. Sullivan raised this very issue in his
petition for reconsideration and the ALJ summarily refused to provide further
explanation.
Sullivan’s
testimony at the hearing established the rhizotomies were very beneficial. The records of Dr. McDowell establish the
rhizotomies have been beneficial. Also,
the opinions of Dr. Ensalada, upon whom James River based the medical fee dispute
contesting the reasonableness and necessity of the rhizotomies, do not support
the ALJ’s decision. In his report of
September 15, 2015, regarding the need for the bilateral lumbar rhizotomies,
Dr. Ensalada stated as follows:
On June 9, 2015,
the patient reported 18 months of 80% pain relief and functional improvement
following the March 26, 2013, lumbar facet radiofrequency ablation, but a
return to baseline levels of pain thereafter.
At that juncture
(June 9, 2015), the appropriate, reasonable and necessary next step was to
repeat the lumbar facet radiofrequency ablation, but instead, diagnostic medial
branch blocks were again performed. The diagnostic medial branch blocks were
done on August 3, 2015, were not appropriate, not reasonable and not necessary,
because the diagnostic medial branch blocks done on March 5, 2013, and the 18
months of pain relief following the lumbar facet rhizotomy done on March 26,
2013, clearly demonstrated the facetogenic nature of this patient’s low back
pain. Consequently, I recommend a retrospective review on the issue of the
reasonableness and necessity of the diagnostic medial branch blocks done on
August 3, 2015. The requested lumbar facet rhizotomy is, however, medically
reasonable and necessary.
The
ALJ must provide the basis for his decision in order to permit meaningful
review. In this case, we cannot find any
statement in the record which establishes Sullivan said that at the time the
rhizotomies were performed, the procedure did not help. Further, the ALJ did not cite to any medical
evidence in support of his decision on this issue. More significantly, the ALJ did not state
whether the rhizotomies were not reasonable and necessary or not work-related
as the basis for his finding that the future rhizotomies are not
compensable. Consequently, the claim must
be remanded to the ALJ for additional findings of fact addressing the issue of
whether the rhizotomies are reasonable and necessary and/or work-related. We
express no opinion as to the outcome on remand. The ALJ’s finding that the
lumbar facet rhizotomies are not compensable shall be vacated and the claim
remanded for additional findings.
Accordingly, regarding the issues raised on appeal, the determinations
of the ALJ in the April 21, 2017, Opinion and Order and April 5, 2016, Order
that the opioids Methadone, Oxycodone, Tramadol, and the ischial bursa
injections are non-compensable are AFFIRMED. The ALJ’s determination the lumbar facet
rhizotomies are not compensable is VACATED. This claim is REMANDED to the ALJ for a determination as to the compensability of
the lumbar facet rhizotomies supported by the appropriate findings in
accordance with the views expressed herein.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON MICHAEL FLEET JOHNSON
P O BOX 1529
PIKEVILLE KY 41502
COUNSEL
FOR RESPONDENT:
HON JAMES G FOGLE
610 S FOURTH ST STE 701
LOUISVILLE KY 40202
RESPONDENT:
DR SUSAN MCDOWELL
2050 VERSAILLES RD
LEXINGTON KY 40504
RESPONDENT:
CARDINAL HILL
2050 VERSAILLES RD
LEXINGTON KY 40504
RESPONDENT:
DR LOUIS VASCELLO
1760 NICHOLASVILLE RD STE 302
LEXINGTON KY 40503
ADMINISTRATIVE
LAW JUDGE:
HON CHRIS DAVIS
657 CHAMBERLIN AVE
FRANKFORT KY 40601
