Workers’
Compensation Board
OPINION
ENTERED: November 9, 2017
CLAIM NO. 201601817
SIGNATURE HEALTHCARE EAST PETITIONER
VS. APPEAL FROM HON. R.
ROLAND CASE,
ADMINISTRATIVE LAW JUDGE
KRISTEN MOTT
and HON. R. ROLAND CASE,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
IN PART, VACATING IN PART,
AND
REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member. Signature
Healthcare East (“Signature”) seeks review of the May 9, 2017, Opinion, Award,
and Order of Hon. R. Roland Case, Administrative Law Judge (“ALJ”) finding
Kristen Mott (“Mott”) sustained a work-related back injury and awarding
temporary total disability (“TTD”) benefits, permanent partial disability
(“PPD”) benefits enhanced by the three multiplier, and medical benefits. The ALJ also determined the proposed surgery
to be performed by Dr. David Rueben was non-compensable, overruled Mott’s
objection to Signature’s failure to comply with discovery, overruled
Signature’s objection to the submission of certain medical bills at the final
hearing, and directed the contested medical bills be paid. Signature also appeals from the July 25,
2017, Order overruling its petition for reconsideration.
On appeal, Signature challenges the ALJ’s decision it is
responsible for the payment of medical bills which were generated prior to the
Benefit Review Conference (“BRC”) but were not presented at the BRC. Signature also asserts the ALJ’s analysis
required by Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003) was erroneous as a
matter of law.
Mott’s Form 101 alleges on July 4, 2015, she injured her
low back while “lifting a patient from the floor to chair and assisting the
patient to bed.”
Mott’s November 4, 2016, deposition reveals she is a
licensed practical nurse (“LPN”), who began working for Signature in October
2013. She described her duties as an LPN
with Signature as follows:
A: Toileting patients, changing beds,
making beds, giving medication, breathing treatments, would care, making sure,
you know, water, any IVs, codes.
Q: What was the situation there with
moving/lifting patients? Was that something you did on a daily basis as an LPN?
A: Yes.
Q: Okay. So you would have CNAs there
to assist you, but you had to be involved in that, also, right?
A: If they needed help. I mean, you
know, we’re a team, so, you know, I’m not going to – if somebody asks you to do
something, you do it. If you need assistance, then you’d have – have somebody
help you.
Q: And is that something you would do
on a daily basis?
A: Yes.
Q: Okay. Was – at Signature Healthcare
East, was there a requirement of you have to be able to lift up to “X” amount
of weight, if you know?
A: I’m not sure.
Q: Okay.
A: I’m pretty sure there was, but I
don’t know what the exact number was.
Mott estimated she worked between 36 to 40 hours per week
as well as overtime when Signature was short staffed. After her injury, Mott moved to a light duty
position which she described as follows:
Q: Okay. When you worked after July 4,
2015, what – when you came back to work the next day, whether that was July 5th,
July 6th, whenever your next day back was, what position did they
put you in at that point? Did you continue working regular duty for awhile?
A: No.
Q: Okay. What was the first light-duty
position they gave you?
A: Helping Carrie, which was the unit
manager.
Q: So was it just office/administrative
work?
A: Yeah. It was office, and then they
wanted me helping pass trays.
Q: What kind of things did they have
you doing in the office to help Carrie?
A: Admissions, charting. They had me do
that for awhile, to where they would only have – instead of three nurses on the
floor, they would have two nurses on the floor and then have me chart for them.
Q: Okay. How long did you do that?
A: I’m not sure. A couple of months, I
think.
. . .
Q: -- you were doing their charting?
A: Right. I’m trying to chart for
something somebody else did.
Q: Right.
A: Which is not…
Q: So they would have to come back to
you and communicate with you what they had done, and –
A: Uh-huh.
After a couple of months, Signature moved Mott to a
position organizing medical records to be shipped to Iron Mountain.[1] She would also “organize supply closets,
count supplies, chart supplies to patient, do their billing for it,” “organize
every meal in the dining room,” and “cut everybody’s fingernails in the entire
facility.” She continued to perform
these tasks until her last day of work on May 8, 2016.
Mott testified that after she returned to work, for a
period of time she earned equal or greater wages.
Mott went to work for RxCrossroads on
August 1, 2016, as a compliance training nurse.
She was working there at the time of her deposition. This job entailed calling patients,
scheduling shipments of medications, and following up with the patients
regarding the effectiveness of the medications.
In addition to talking with patients, she also talked to doctor’s
offices. She earned $22.00 an hour
working at least 40 hours a week. Her
hours were 11:30 p.m. to 8:00 a.m. There
were no physical requirements associated with this job, and she was able to
alternate between sitting and standing.
She earned more at RxCrossroads than she did at Signature. Her current restrictions imposed by Dr.
Rouben include a 25-pound weight restriction with no repetitive bending and
twisting. Mott testified there is no
reason she would not be able to work for RxCrossroads for the indefinite future
as she has no problems doing her current job.
However, Mott explained as follows:
Q: And they haven’t given you any indication
that that job’s just for a limited amount of time or anything?
A: As long as we have our client, I
have a job.
Q: What do you mean – who – and what do
you mean as long as we have the client?
A: It’s – RxCrossroads is a specialty
pharmacy, so they have contracts with medication companies. And so they have a
company with a specific medication. I work with that medication and that
medication alone. I do not know how long their contract is for, but we
basically have that contract because it’s a specialty medication and it has to
come from a specialty pharmacy, and a lot of them are not approved through
insurance, so we have to do appeals and so on and so forth. So, I guess, as
long as it’s not listed on the formulary for insurances, we’ll be okay.
Q: Okay.
A: If that changes, I don’t know what
happens after that.
As to whether she had any unpaid medical bills, Mott
testified as follows:
Q: Okay. We established that recent CT
scan you had at Norton Audubon, you’re not sure if that’s been paid. Are there
any other medical bills that you feel like are unpaid and that you would relate
to this work event?
A: I do have an outstanding bill at
American Pain Institute.
Q: Okay. Do you know what your balance
is there on that?
A: I think it’s, like, $450.
Q: Is that for any particular thing
that you know of or …?
A: There’s some from the drug
screenings that they make you do every month, from when I was still covered
that they said – I called about it at one point, and they said that they had
changed how it had to be coded. I asked them if I could have ICD-10 code so
that I could give it to American Pain Institute so they could bill it
correctly, and they would not give it to me. And so I relayed that to American
Pain Institute, and yet, I still have a huge bill.
Q: Okay. Yeah, I don’t know if you’ve
given that to Chris, but if you’ve got that, anything you’ve got that you feel
like – a statement, a bill that’s unpaid, if you can get it to him, he’ll get
to me, and I’ll give it to them. We can get this addressed. And I’ll mention
right now, there’s issues with – because of Dr. Loeb’s report, but we – you
know, we’ll address those things. So anything you get like that, if you’ll get
it to us –
A: Right. They haven’t mailed it to me.
I’ve asked them for a copy of it, and their receptionist went into labor while
I was there and …
. . .
Mr. Evensen: The only bill I have from
API is dated May 16, 2016. It looks like it was faxed to somebody that day, and
it has the itemized bill through 4-25-16. At that point, there was an ending
balance of $2,096.00.
Mr. Yeager: Okay.
Mr. Evensen: I don’t have anything
since then. And on this bill, it does look like workers’ comp made some
payments.
The Witness: Yeah. I know they have
paid some stuff, but –
Mr. Evensen: Yeah.
The Witness: -- there was – they had
called me about the epidural at one point. I don’t know if they ever officially
got the payment for that or not.
On January 16, 2017, Mott filed a “Notice of Filing of
Unpaid Medical Bill by Norton Audubon Hospital/CT Discogram.” The attached statement dated December 30,
2016, reflects Anthem payments and adjustments and a patient balance of
$1,518.73.
On February 9, 2017, Mott filed a “Notice of Filing Unpaid
Medical Expense” with an attached statement dated July 22, 2016, from American
Pain Institute for $1,632.30 for services rendered between January 5, 2016, and
July 12, 2016. The statement lists payments
made by the workers’ compensation carrier as well as entries styled “Work Comp
Reduction.”
On February 24, 2017, the parties participated in a
telephonic BRC. The Telephonic BRC Order
and Memorandum of that same date listed the contested issues as: “benefits per
KRS 342.730; work-relatedness/causation; unpaid or contested medical expenses;
injury as defined by the ACT; exclusion for pre-existing disability/impairment;
TTD.” Handwritten under “Other” is: “whether
proposed surgery is compensable” and “whether defense evidence is substantial
evidence.” The order reflects counsel
for the parties participated by telephone.
On March 10, 2017, the ALJ conducted a hearing. Contemporaneous with the hearing the ALJ
entered a March 10, 2017, Order which indicates the only witness to testify was
Mott and the evidence to be filed by both parties was identified on the
record. Briefs were to be filed by May
1, 2017, and as of May 1, 2017, the matter would stand submitted.
At the hearing, the ALJ discussed the fact that a
telephonic BRC was conducted on May 24, 2015, at which time the parties entered
into certain stipulations and identified the contested issues. In addition, the following exchange took
place:
Judge Case: All right, there was an
issue mentioned that you have a deposition scheduled?
Mr. Ferreri: Yes, Your Honor.
Mr. Evensen: The Defendant is going to
attempt to place surveillance video into the record. My objection to this is
that this surveillance was taken back, I think, in the fall of 2016. Early on
in this case I filed a request for production of documents in which I
specifically requested that they provide me all video surveillance, and a
response to a request for production of documents is supposed to be made within
thirty days or, if it’s beyond the thirty days, within ten days of them coming
into possession of that evidence. That didn’t happen. They popped this on me
about a week ago. And, I got their surveillance. I looked over it. There was
nothing to it. And, then, Mr. Ferreri calls me again and says, oh, I didn’t
give you everything. There’s even more. So, I got that last week. The Rules of
Civil Procedure apply in workers’ comp. They had this back in October. If they
were going to use it, they should have given it to me and not held it back for
three or four months, when I had a valid request our for it.
Mr. Ferreri: Just in response, Your
Honor, at the time of the original request for production of documents we did
not have the surveillance report. We obtained it after the original request.
I’ll admit that it was an oversight that we didn’t update our response to the
request for production of documents. That being said, we scheduled the
deposition of the surveillance – the person who took the surveillance. It’s not
like we’re trying to hide anything. We forwarded Chris all the reports. He has
it now for over a week, and I don’t think there’s really any prejudice. And, as
someone who decides what evidence can come in on a case, we fee [sic] like it’s
a material issue that you should weigh under consideration as we’re talking
about whether Ms. Mott should undergo surgery.
Judge Case: Okay; I’m going to allow
you to go ahead and take the deposition and I’ll reserve ruling on its
admissibility, particularly as to relevance on the key issue of whether
proposed surgery is compensable. I’m not for sure what a video is going to show
as to whether or not a surgery is compensable. I think that’s going to be –
well, we’ll see. Let’s go ahead and let the deposition be taken and then I can
weigh as to its admissibility and, particularly, its relevance on the initial
decision as to whether or not a proposed surgery is compensable. At this time,
would the Plaintiff identify for the record the evidence on which he intends to
rely?
Mr. Evensen: Jewish Hospital East filed
with the Form 101; BaptistWorx filed with the Form 101, which includes an MRI
from Highfield & Open MRI; Dr. David Rouben filed with the Form 101, as
well as three supplemental filings; Dr. Bilkey filed on September 22nd,
2016; Norton Audubon Hospital which is a CT scan filed on November 11th,
2016; there was then a corrected notice of filing also that November 11,
because I think we had the wrong attorney on the certificate. We have filed two
notice of unpaid medical expenses; one filed on January 16th of ’17
and one filed on February 7th of ’17. And, today, as an exhibit
through Ms. Mott, I’m going to make additional unpaid medical bills an exhibit
that have just come to my attention – she brought to me yesterday.
Judge Case: For the Defendant?
Mr. Ferreri: We have a report of Dr.
Loeb, as well as an addendum from Dr. Loeb and we are planning on taking Dr.
Loeb’s deposition. We have filed records from Dr. Rouben and we are planning on
taking Dr. Rouben’s deposition. We have taken Ms. Mott’s deposition – a copy of
her job description with Signature Healthcare. There are utilization review
reports and peer review reports, a pre-injury wage certification, medical
records from Results Physiotherapy, and surveillance reports and the deposition
of an investigator.
Judge Case: You are concerning me
somewhat with your planning on taking depositions. Do you have those scheduled?
Are they reasonably close?
Mr. Ferreri: Yes, Your Honor, we were
originally the last time for the benefit review conference and discussed the
need to take Dr. Rouben’s and Dr. Loeb’s depositions. Those got delayed so we
could accommodate schedules. Ultimately, those are going to be material to this
case. The dates of the depositions are coming up. Dr. Rouben is scheduled for March
22nd, 2017. Dr. Loeb is scheduled for April 11th, 2017.
And, the deposition of the investigator is scheduled for this upcoming Monday.
Judge Case: As you are aware, I only
have sixty days to issue a written decision from today’s date, so you’re going
to be cutting it close. So, you need to make sure that your reporter gets the
depositions transcribed and filed very quickly. Otherwise, they’re not going to
be in the record …
Mr. Ferreri: We will definitely do
that. I just want to make sure – because we really want that proof. We’ve
always wanted that proof. We were allowed that proof at the benefit review
conference. The scheduling isn’t through any fault of our own. And, at the time
that we had a telephonic status conference in this case, we decided, I believe
to go forward with this final hearing in light of those depositions being taken
after. So, I just want to make sure that we’re all okay there.
Judge Case: I have no problem with them
being taken. I’m just saying that the sixty day rule is – that we are under the
gun on.
Mott testified Dr. Rouben, the specialist treating her
back, recommended surgery which she desires to undergo. Mott testified her personal insurance paid
for ablations and facet injections. Dr.
Rouben had recommended a CT discogram for which the carrier refused to
pay. As a result, her insurance paid a
portion of the bill and a portion is unpaid.
Mott testified she left RxCrossroads
on January 2, 2017, to work at Career Staff Unlimited where she works as a
school nurse providing “diabetic care” to two children located at different
schools. She earns $18.00 an hour when
they are in school and she can work up to 35 hours a week. Currently, she earns less than she earned at
Signature. She does not work during the
summer break. In caring for the two
children, Mott is required to stick their finger and give them insulin or
program their insulin pump. Neither
child needs assistance with their daily living activities. Mott provides no other form of direct
care. She also performs charting on the
computer at the nurse’s station and walks to the classroom of one of the
children. She does not believe she can
return to a job at Signature as there are certain aspects of the job she cannot
perform.
Mott’s sole testimony regarding the unpaid medical bills is
as follows:
Q: We have filed into evidence some
medical records – excuse me, some medical bills that were unpaid, and then you
brought me, yesterday, when we met, some additional bills. And, I’m just going
to have you look at this exhibit real quick. Do these appear to be bills for
treatment of this injury, that have either not been paid or they were paid
through your personal insurance and a balance remains?
A: Yes.
Mr. Evensen: I’d like to make this an
exhibit to the hearing transcript, additional unpaid bills that she’s
receiving.
Mr. Ferreri: Let me just file an
objection that they’re supposed to be disclosed at the time of the notice of
disclosure at the benefit review conference. Having said that, we don’t expect
you to rule on that objection but just keep that in mind with our upcoming
objection with the investigator.
Mr. Evensen: Yeah, well, we didn’t have
an in-person BRC. We did it by phone, so this is my first time with everybody.
And, when I got them yesterday, from her – because they come through – most
recently, I emailed them to Bobby last night.
Mott
provided the following explanation as to why she left RxCrossroads:
Q: You left RxCrossroads in January of
2017, is that right?
A: Yes.
Q: Why did you leave RxCrossroads?
A: The hours.
Q: Were you not working enough hours?
A: No, I was working enough hours. The
hours were eleven-thirty to eight, and I have a family, and it wasn’t working
out.
Q: Was there any physical reason that
you left that job at RxCrossroads?
A: No.
Mott provided the following testimony regarding her current
employment at Bearno’s:
Q: When did you start working at
Bearno’s?
A: I started, technically, working
there as of the beginning of February.
Q: I’m sorry, the beginning of February
of what year?
A: This year.
Q: You didn’t work there in November of
2017 – I’m sorry, 2016?
A: No.
Judge Case: I’m confused on what you
asked.
Mr. Evensen: Do you want me to explain?
A: So, my soon to be mother-in-law owns
Bearno’s and my fiancé runs Bearno’s, so I’m up there a lot, hanging out and
helping out if they need help. I was not receiving a paycheck of any sort until
February.
Q: Did you work at Bearno’s at any time
before February, or volunteer otherwise?
A: I mean, I volunteer or spend time up
there. Sometimes I’m up there on my computer, on the internet, hanging out.
Q: But, let me ask this, what did you
start doing for Bearno’s in February of this year? What’s your job there?
A: Working on the phone.
Q: Okay; do you ever wait tables?
A: No when – not paid – I mean, I would
help out if somebody needed it.
Q: Okay, when did you start to help out
at Bearno’s and work as a waitress?
. . .
A: Since – I guess, probably May of
2014, as long as Brett and I have been together.
. . .
REDIRECT EXAMINATION
Q: Bobby asked you some questions about
when you would be up at Bearno’s and when you would either take the calls for
call-in orders or take a couple of tables. Did you do anything that was outside
of your medically placed restrictions, either taking pizzas to a table or
taking phone calls for orders?
A: No.
Mott denied she consistently worked at Bearno’s up until
the time of the injury and thereafter.
Significantly, Mott agreed to fill out the appropriate paperwork so wage
records and a personnel file could be obtained from Bearno’s.
At the conclusion of the hearing, the ALJ stated:
Judge Case: In light of the evidence
still being developed, I’m going to have briefs due May the 1st,
2017. Please file those on LMS because I’m going to submit the case as of May
the 1st, 2017. My written decision is due within sixty days of
today’s date which would be, approximately, May the 10th, 2017. So
I’m going to have all the evidence in and the briefs in by May the 1st,
and issue a written decision shortly thereafter. …
The ALJ determined Mott has a 7%
impairment rating based on the impairment rating assessed by Dr. Warren
Bilkey. Concerning Mott’s entitlement to
enhanced benefits, the ALJ provided the following analysis:
The issue of benefits under KRS 342.730
involves the determination of whether the plaintiff has a permanent disability
and if so whether it is total or partial in nature. The ALJ notes the plaintiff
returned to work at light duty following her injury and worked in that capacity
until May 8, 2016. The plaintiff testified she began working August 1, 2016 for
a different employer earning greater wages that she was earning with the
defendant employer. Therefore, in this case the ALJ finds the plaintiff is not
totally disabled.
. . .
However, the analysis does not end there
as the ALJ must also determine whether the provisions of KRS 342.730(1)(c)1 or
2 apply. Subparagraph one applies when the plaintiff lacks the physical
capacity to return to the type of work he was performing at the time of his
injury and has not returned to earning same or greater wages. If the plaintiff
is earning same or greater wages a determination must be made as to whether the
plaintiff will be able to continue doing so for the indefinite future. If
employment is found to be not likely then the three multiplier would apply. See
Fawbush vs Gwynn, 103 SW3d 5 (KY 2003).
In this particular case, the plaintiff
returned to light duty work following the injury and worked in that capacity
until May 8, 2016 after which she began working for a different employer August
1, 2016 earning equal or greater wages. The issue is whether or not the
plaintiff retains the physical capacity to return to the type of work performed
at the time of the plaintiff’s injuries. Dr. Bilkey opined the plaintiff would
have work restrictions that would preclude her from returning to the type of
work she was performing at the time of her injury.
In this particular case, the ALJ is
persuaded that the plaintiff does not have the physical capacity to return to
the work being performing at the time of the injuries. Since the plaintiff does
not have the physical capacity to return to the type of work she was performing
at the time of her injuries but did return to work at equal or greater wages, a
Fawbush analysis is required. Initially, the ALJ would note the
plaintiff is not earning equal or greater wages at this time. Although, the
employer argues that when her work as a waitress is added to her current work
status it would equal a greater average weekly wage, the ALJ is not so
persuaded. The work at Bearno’s appears to be sporadic and the plaintiff cannot
be expected to continue to work two jobs and to earn a greater average weekly
wage. As indicated the plaintiff has ceased her employment for RxCrossroads so
obviously that cannot be expected to continue for the indefinite future. The
plaintiff is now working in a job earning less wages. The plaintiff’s
testimony, which the ALJ deems credible, indicates she cannot return to the
type of work she was performing at the time of the injury and although she
returned to work earning equal or greater wages she is not presently doing so.
It is therefore found that the plaintiff is entitled to the three factor. In
passing, the ALJ would note that even though the proposed surgery was
ultimately taken off the table by Dr. Rouben, the ALJ finds the plaintiff’s
testimony to be credible because she was willing to undergo a major surgery to
try to be relieved of her pain. The ALJ finds the plaintiff’s desire to undergo
surgery in order to relieve her pain corroborates her testimony concerning her
degree of pain and her limitations. The ALJ specifically finds the plaintiff
does not have the physical capacity to return to the type of the work being
performed at the time of her injury and even though the plaintiff returned to
work at equal or greater wages it is not expected that she could continue to do
so for the indefinite future and in fact is not doing so at the present time.
The plaintiff is therefore entitled to the three factor.
Therefore, based on the plaintiff’s
credible testimony corroborated by the opinion of Dr. Bilkey it is found the
plaintiff does not have the physical ability to return to the occupation being
performed at the time of the injury and therefore the plaintiff will be
entitled to the three factor. The plaintiff will be entitled to 7% impairment
rating multiplied by 0.85 multiplied by 3 multiplied by $536.56 or the sum of
$95.78 for a period of 425 weeks. The appropriate award will be entered.
Concerning the compensability of the disputed medical
bills, the ALJ provided the following:
The plaintiff, on January 16, 2017, filed
notice of an unpaid medical bill from Norton Audubon Hospital/CT Discogram.
This bill was for $1, 518.73 after payment by a third party and adjustments. On
February 9, 2017 the plaintiff filed notice of an unpaid medical expense in the
amount of $1,632.30. The plaintiff also, at the final hearing, filed certain
unpaid medical expenses that remained unpaid. The defendant objects to the
filing of the medical bills at the final hearing and relies on the case of Roach
v. Owensboro Health Regional Hospital, 2017 WL 1290626 a Court of Appeals
case which is not yet final. The ALJ has however reviewed the decision in Roach
supra and finds there are several differences in the facts. In the
instant case the issue of medical expenses was listed on the benefit review
conference order and the bills were introduced on direct examination and not on
re-direct examination. Additionally, in this particular case, there is a notice
of filing of at least a portion of the bills prior to the benefit review
conference. The ALJ therefore finds the case of Roach supra is
distinguishable. The issue of unpaid medical expenses was preserved at the
benefit review conference and hence is appropriately before the ALJ.
The ALJ would note the defendant employer
in this case did not file a medical fee dispute or a From 112. Attention is
directed to 803 KAR 25:012§1(5) which indicates that if an application for
adjustment of claim is pending concerning the injury which is the subject of
the dispute the movant shall field a Form 112 and shall also serve copies on
the other parties of record. Additionally, it provides that the movant shall
further file a motion to join the medical provider as a party to the claim. In
this case, not only has the employer not filed a Form 112 there was no motion
to join the medical provider. Attention would be directed to Dyer vs M.W.
Manufactures Holding Corporation, 2004-85372 an Opinion of the Workers’
Compensation Board on this issue. The Board in Dyer concluded “MW did
not file a Form 112 and in view of the mandatory language contained in the
regulations, we are in no position to conclude the ALJ abused his discretion.”
In this case, quite simply the employer did not follow the mandatory
requirements of filing a Form 112 or joining the medical providers.
Therefore, since the issue of medical
expenses was preserved at the benefit review conference, the plaintiff filed a
notice of filing unpaid medical expenses as well as filed the medical expenses
as part of the direct examination and the employer failed to file a Form 112
and/or join the medical providers the medical bills are deemed to be compensable
and the employer is required to pay same pursuant to the medical fee schedule.
Additionally, the ALJ has reviewed the
medical bills in question and finds that they are reasonable and necessary and
related to the injury in question. The bills in question seem to be related to
the treatment of Dr. Rouben and/or on his recommendation. The ALJ notes Dr.
Rouben was the plaintiff’s treating physician and the medical bills are
therefore found to be compensable.
Signature filed a petition for
reconsideration requesting reconsideration of the finding regarding the unpaid
medical bills asserting 803 KAR 25:010 § 13(9) requires the
claimant to bring to the BRC copies of known unpaid medical bills not previously
provided. It contended this regulation
is mandatory and Roach v. Owensboro Health Regional Hospital, 518 S.W.3d
786 (Ky. App. 2017), directs that Mott’s failure to present unpaid medical
bills and out-of-pocket medical expenses at the BRC prevented the ALJ from
ruling on the compensability of those bills and expenses in question.
Signature also requested the ALJ
delineate the medical evidence relied upon in finding each of the medical bills
compensable.
Finally, Signature requested additional findings and
analysis regarding the decision to apply the three multiplier contained in KRS
342.730(1)(c)1. Signature noted it had
established Mott is earning an equal or greater wage working at Bearno’s and Career
Staffing Solutions. It asserted a proper
Fawbush, supra, analysis was not performed as the ALJ did not
provide the evidence he relied upon in determining enhancement by the three
multiplier was more appropriate.
Signature noted Mott is not exceeding her restrictions and is not
working more than 45 hours a week.
In the July 25, 2017, Order the ALJ overruled the petition
for reconsideration concluding an issue was not raised which had not been
adequately discussed in his decision.
The ALJ noted the testimony of Dr. Rouben specifically indicated the
medical bills were reasonable and related to the injury in question and cited
to portions of Dr. Rouben’s records and deposition. Regarding enhancement of Mott’s PPD benefits
by the three multiplier, the ALJ provided the following:
The Defendant requests additional findings
concerning the application of the triple multiplier. Again, this is adequately
discussed in the original Opinion. Again, the ALJ finds that the work at
Bearno’s is sporadic and is essentially at the will of the plaintiff’s fiancé’s
family. In any event, as the ALJ originally found, the plaintiff cannot be
expected to continue to work two jobs and earn a greater average weekly wage.
The ALJ again finds that the plaintiff is not earning equal or greater wages at
this time. Additionally, even if the plaintiff was earning equal or greater
wages at this time she could not be expected to do so for the indefinite future
because the work at Bearno’s would appear to be dependent on the good will of
the plaintiff’s fiancé. Attention would also be directed to the response filed
by the plaintiff wherein the sporadic nature of the plaintiff’s work for
Bearno’s is demonstrated.
On appeal, Signature contends the ALJ erred as a matter of
law in finding any unpaid medical bills not presented at the time of the BRC to
be compensable. Signature argues since
Mott did not comply with the mandatory provisions of 803 KAR 25:010 Section
13(9), the medical bills not presented prior to the BRC are
non-compensable. Signature argues the
holding in Roach, supra, is clear that Mott’s failure to produce
the unpaid medical bills at the BRC causes the bills to be
non-compensable. Even though the ALJ
found the bills were not introduced on redirect and the medical treatment was
listed as a contested issue, Signature contends that does not change the
mandate of the regulation and the Court of Appeals’ holding in Roach.
Concerning the ALJ’s finding it did not file a medical fee
dispute as required by 803 KAR 25:012 Section 1(5), Signature argues the ALJ
presumed the “movant” in this section means the Defendant-Employer. However, Signature contends since the
Plaintiff had the burden of proof as to all elements of the claim she should be
considered the movant and was therefore required to assert a medical fee
dispute. Signature also argues it cannot
be required to file a Form 112 concerning bills it never saw prior to the final
hearing. It requests the Board reverse
the ALJ’s finding that all medical bills presented after the BRC for the first
time are compensable. Notably, Signature
does not challenge the ALJ’s finding the medical bills filed in the record
prior to the BRC are compensable.
Mott counters that the ALJ properly distinguished the facts
of this case from those in Roach in that the medical expenses were
listed on the BRC Order and unpaid bills had already been filed into evidence;
thus, the issue was appropriately before the ALJ. In addition, Mott argues Signature failed to
file a medical fee dispute which is mandatory in order to challenge the
bills. Mott also asserts the BRC was
telephonic and there was no in-person meeting during which the bills could be
exchanged. Mott asserts the ALJ left the
proof open beyond the BRC and the hearing long after the unpaid bills were
introduced at the hearing. Thus, Mott
argues the parties were able to continue to file evidence and Signature took
medical depositions and filed proof in the record addressing the reasonableness
of medical treatment and the associated bills.
As proof time remained open at the time of or after the hearing, Mott
asserts Signature cannot claim these bills were not timely before the ALJ.
Signature also contends the evidence establishes Mott is
earning a greater or equal wage at two subsequent concurrent employers,
Bearno’s and Career Staffing Solutions.
Signature also asserts a correct Fawbush, supra, analysis
was not performed as the ALJ did not cite to the evidence upon which he relied
in finding Mott is not currently earning an equal or greater average weekly
wage (“AWW”). Signature maintains the
evidence establishes Mott is not exceeding the scope of her restrictions in
performing her current jobs at Bearno’s and Career Staffing Solutions. Signature contends the ALJ improperly relied
upon statements of Mott’s attorney in the response to its petition for
reconsideration in finding Mott’s work at Bearno’s was sporadic and due to the
largesse of Mott’s fiancé and did not establish she was earning an equal or
greater AWW when combined with her other wages.
Signature notes Mott described her work activities at Bearno’s during
the final hearing with no mention of any kind of arrangement with her
fiancé. Rather, she explained that she
answers the phone and waits on tables. Although Mott tried to couch this as voluntary
work, Signature maintains her wage records show she has been paid regularly by
Bearno’s and the video surveillance shows her reporting to Bearno’s and
actively waiting on tables.
Signature also takes issue with the ALJ’s statement that
even if he considered Mott’s wages from Bearno’s in combination with Mott’s
wages from Career Staffing Solutions to be equal to or greater than the wages
earned at the time of the injury, Mott could not be expected to continue
earning equal or greater wages. It
maintains the ALJ overlooked the fact that between the two jobs Mott has only
been working 45 hours, a reasonable number of hours for someone earning over
$54,000.00 a year. Further, it contends
the ALJ did not cite any evidence of record to support his conclusion that Mott
was not earning an equal or greater AWW, or that she was not likely to continue
earning an equal or greater AWW.
We vacate the ALJ’s determination that a portion of the
medical bills produced at the hearing are compensable and the enhancement of
the award of PPD benefits by the three multiplier. Our reasoning follows.
803 KAR 25:010 § 13(9)(a) reads as
follows:
The plaintiff shall bring to
the BRC copies of known unpaid
medical bills not previously provided and documentation of out-of-pocket
expenses including travel for medical treatments. Absent a showing of good
cause, failure to do so may constitute a waiver to claim payment for those
bills. (emphasis added)
This administrative regulation in effect at the time the
ALJ held the BRC is different from the administrative regulation discussed in Roach,
supra, as it was promulgated after the Board’s decision, but before the
Court of Appeals’ decision in Roach, supra. In Roach, supra, the Court of
Appeals, interpreting the prior version of 803 KAR 25:010 §
13(9)(a), affirmed this Board’s interpretation of the regulation holding as
follows:
Here, the Board
concluded the regulation at issue—803 KAR 25:010 § 13—is compulsory in nature. It further found
Roach's complete failure to comply with any of the regulation's provisions
regarding the introduction of exhibits and the identification of contested
issues prevented the ALJ from resolving the compensability of the unpaid and
out-of-pocket paid medical bills. The Board's decision appears to be consistent
with 803 KAR 25:010 § 13.
Subsection (9) of
that regulation provides the plaintiff/employee “shall bring to
the BRC copies of known unpaid medical bills not previously provided and
documentation of out-of-pocket expenses[.]” 803 KAR 25:010 § 13(9)(a) (emphasis added). This regulation is
framed using the word shall. Concisely stated, “[s]hall means shall.” Hazard Coal Corp. v. Knight, 325 S.W.3d 290, 296 (Ky. 2010). It is a word of command
not subject to disregard. Id. Despite the regulation's compulsory nature, Roach
did not identify any of the bills at issue as exhibits or bring copies of them
to the BRC. She simply made no mention of the bills at all.
The BRC's purpose to
expedite the processing of workers' compensation claims, to avoid the need for
a formal hearing by resolving controversies and, if a hearing is unavoidable,
to narrow and define the contested issues. 803 KAR 25:010 § 13(1), (11), (12). Roach thwarted these purposes
by utterly failing to comply with the regulation's mandates.
These are not the
only subsections with which Roach chose not to comply. 803 KAR 25:010 § 13 also provides:
(11) If at the conclusion of the BRC the parties have not
reached agreement on all the issues, the administrative law judge shall:
(a) Prepare a final BRC memorandum and order including
stipulations and identification of all issues, which shall be signed by all
parties or if represented, their counsel, and the administrative law judge; and
(b) Schedule a final hearing.
(12) Only contested issues shall be the subject of
further proceedings.
Id. (Emphasis added). “At the hearing, the
parties shall present proof concerning contested issues.” 803 KAR 25:010 § 19(1) (emphasis added). Roach did not identify in
the BRC order “unpaid or contested medical expenses” as a contested issue to be
resolved by the ALJ at the formal hearing, but nonetheless raised and presented
proof of the disputed medical bills at the hearing. We agree with the Board
that Roach was not at liberty to evade the regulation's mandatory components.
To compound the
problem, Roach made no mention of the bills during her direct examination. Not
a word was said about her unpaid and out-of-pocket medical expenses until re-direct
examination. This was Owensboro Hospital's first notice of the bills. As noted,
Roach admitted she never submitted the bills to Owensboro Hospital prior to the
BRC or formal hearing. While Owensboro Hospital was aware Roach had received
additional medical treatment, it had no knowledge of the specific bills at
issue.
Roach's actions in
this matter are akin to a litigant showing up at trial without having complied
with the trial court's pre-trial discovery order, without having exchanged all
discovery, and without having notified the other side of all the issues for
trial, and then raising the issue and corresponding exhibits for the first time
on re-direct examination. No trial judge would tolerate such blatant abuse of
the civil rules and its orders. Neither should the Board. The Board should be
no less empowered to force compliance with the procedural regulations governing
workers' compensation claims.
Id.
at 790-791. (emphasis added)
The current version of 803 KAR 25:010
§ 13(9)(a) effectively codified the Board’s decision of October 8, 2015, and
the Court of Appeals’ subsequent opinion in Roach, supra. Consequently, Mott was required to
produce any known unpaid bills at the
BRC, and absent a showing of good cause
the failure to produce the bills may constitute a waiver to seek payment of
those bills. The fact the bills were
introduced on direct examination as opposed to re-direct has no bearing on the
issue of their compensability.
Furthermore, the fact the parties’ listed unpaid medical bills as a
contested issue does not vitiate Mott’s obligation to produce any known unpaid
medical bills at the BRC. Moreover, the
fact the parties listed unpaid medical bills as a contested issue obviated the
necessity of either party filing a medical fee dispute concerning disputed
medical bills. Furthermore, as Signature
noted, it could not file a medical fee dispute concerning a bill of which it
was not aware. Thus, the ALJ erred in
determining Signature could not contest the medical bills since it had not
filed a medical fee dispute. We find no
merit in Mott’s assertion that she was not required to produce the medical
bills at the time of the BRC because it was a telephonic BRC. Following Mott’s logic would lead to the
absurd result of the parties never being required to produce known unpaid
medical bills at a telephonic BRC.
803 KAR 25:010 § 13(9)(a) and the Board’s
holding, affirmed by the Court of Appeals in Roach, supra, are
clear- failure to produce known
unpaid bills at the BRC absent a showing of good
cause may constitute a waiver to seek payment of those bills. The ALJ did not resolve the issue of Mott’s
entitlement to have disputed medical bills paid by Signature based on the
current version of 803 KAR 25:010 § 13(9)(a) by determining
whether good cause existed for Mott’s failure to produce known unpaid medical
bills at or before the BRC. Therefore,
the ALJ’s decision regarding the compensability of certain medical bills must
be vacated.
That said, some bills produced at the
hearing were produced either in part or in full prior to the BRC. One of the four bills in question is a
January 30, 2017, statement from Norton Healthcare for a CT scan in the amount
of $1,518.73 which was introduced prior to the BRC on January 16, 2017.[2] Mott also introduced a statement from the
American Pain Institute dated January 18, 2017, spanning the period from June
8, 2016, through November 4, 2016, in the amount of $4,081.69. This statement encompassed the charges in the
previous statement of July 22, 2016, from American Pain Institute which Mott
filed on February 9, 2017, prior to the BRC.
Since Signature does not contest the ALJ’s finding the bills from Norton
Audubon Hospital of $1,518.73 and from American Pain Institute of $1,632.30 are
compensable, this Board will not hold otherwise. Although the bill from American Pain
Institute introduced at the hearing contains additional charges in addition to
the charges listed in the statement filed in the record on February 9, 2017,
Signature was clearly aware of the statement as the most current statement of
January 18, 2017, indicates payments were made by Signature’s workers’
compensation carrier. Thus, Signature is responsible for these two bills.
However, two statements were introduced at the hearing
which were not provided at or before the BRC.
One statement is from Metro Anesthesia Consultants LLC dated January 30,
2017, for services rendered on May 25, 2016, in the amount of $560.00. After credit for payments “paid by primary”
and an “adjustment,” the balance is $30.00.
The other statement is from DXP Imaging dated January 23, 2017, for
services rendered on October 21, 2016, by Norton Audubon Hospital. The total charge without any adjustments is
$524.74. The description of services
lists one CT scan and five diskographies.
Significantly, in introducing these bills at the hearing, Mott offered
no testimony linking them to her work-related injury.
The ALJ’s determination the bill of
Metro Anesthesia Consultants LLC for $30.00 and the bill of DPX Imaging of
$524.74 are compensable shall be vacated.
We feel compelled to address the
actions of the ALJ in leaving the record open for further introduction of proof
following the hearing. At the March 10,
2017, hearing, the ALJ stated the record would remain open in order to allow
Signature to take the depositions of Drs. Rouben and Loeb and the
investigators. However, at the
conclusion of the hearing, the ALJ failed to specify whether the record was
left open solely for the purpose of taking the scheduled depositions or if it
was also left open for the introduction of evidence relating to the
compensability of the medical bills introduced at the hearing. Our uncertainty as to the ALJ’s purpose for
leaving the record open is based in part on the fact that in addition to taking
the depositions discussed during the hearing, Signature, on April 13, 2017,
filed wage records and a wage certification regarding Mott’s earnings with
Career Staffing Solutions, including a calculation of her AWW during the period
extending from January 9, 2017, through April 3, 2017. On that same date, Signature filed the wage
records and a wage certification pertaining to Mott’s earnings at Bearno’s,
including a calculation of her weekly wages during the period from February 6,
2017, through April 3, 2017. Thus, we
are unsure whether the ALJ intended the extension of proof time to include
evidence regarding the compensability of the medical bills first produced at
the hearing.
Accordingly, the matter will be
remanded to the ALJ for a determination of whether good cause existed for
Mott’s failure to produce the known unpaid medical bills at the BRC. In making that determination the ALJ shall
clarify the purpose for leaving the record open after the hearing until May 1,
2017. Should the ALJ determine Mott’s
failure to produce the bills at the BRC did not constitute a waiver of her
claim to seek payment of bills, the ALJ shall then determine whether the bills
are related to and reasonable and necessary treatment of Mott’s work-related
injury.
We agree with Signature that the ALJ
did not carry out the precise analysis required by Fawbush, supra,
and as explained in Adams v. NHC Healthcare, 199 S.W.3d 163 (Ky.
2006). In Fawbush, supra,
the Kentucky Supreme Court instructed once the ALJ determines KRS
342.730(1)(c)1 and (1)(c)2 both apply as follows:
We conclude, therefore, that
an ALJ is authorized to determine which provision is more appropriate on the
facts. If the evidence indicates that a worker is unlikely to be able to
continue earning a wage that equals or exceeds the wage at the time of injury
for the indefinite future, the application of paragraph (c)1 is
appropriate.
Id. at 12.
In Adams, supra, the
Kentucky Supreme Court explained further:
The court explained
subsequently in Adkins v. Pike County Board of Education, 141 S.W.3d 387 (Ky. App. 2004), that the Fawbush analysis includes a broad range of factors, only
one of which is the ability to perform the current job. The standard for the
decision is whether the injury has permanently altered the worker's ability to
earn an income. The application of KRS 342.730(1)(c)1 is appropriate if an individual returns to
work at the same or a greater wage but is unlikely to be able to continue for
the indefinite future to do work from which to earn such a wage.
Id. at 168-169.
Here, in analyzing which section of
the statute was more appropriate, the ALJ stated Mott was not earning equal or
greater wages at the time. However, the
wage records from both Career Staffing Solutions and Bearno’s firmly establish
Mott’s combined wages at the time of the hearing equaled or exceeded her
pre-injury AWW. The parties stipulated
Mott had an AWW of $804.34. Signature’s
calculation of Mott’s AWW while working for Career Staffing Solutions reveals
Mott had an AWW in excess of $400.00 each week.
Signature’s computations show an AWW of $473.54. The printouts of Mott’s weekly wages with
Career Staffing Solutions span the period from January 9, 2017, through April
2, 2017. The first record reflects
Mott’s wages from January 9, 2017, through January 15, 2017, and the last
record reflects Mott’s wages from March 27, 2017, through April 2, 2017.
Signature also introduced Bearno’s
weekly wage records of Mott’s earnings spanning the period from February 6,
2017, through April 9, 2017. Those records
reveal the following weeks worked, hours worked, net amount, and gross amount:
WEEK
HOURS GROSS AMOUNT NET AMOUNT
2/6/2017-2/12/2017 |
0.00 |
$573.00 |
$419.27 |
2/13/2017-2/19/2017 |
13.43 |
$573.00 |
$419.28 |
2/20/2017-2/26/2017 |
11.75 |
$573.00 |
$419.27 |
2/27/2017-3/5/2017 |
9.08 |
$573.00 |
$419.29 |
3/6/2017-3/12/2017 |
14.85 |
$573.00 |
$419.27 |
3/13/2017-3/19/2017 |
0.00 |
$573.00 |
$419.27 |
3/20/2017-3/26/2017 |
0.00 |
$573.00 |
$419.28 |
3/27/2017-4/2/2017 |
0.00 |
$573.00 |
$419.27 |
4/3/2017-4/9/2017 |
0.00 |
$573.00 |
$419.28 |
Thus, the records establish that at
the time of the March 10, 2017, hearing, Mott was earning wages which exceeded
her pre-injury AWW.[3] In stating he was not persuaded Mott’s wages
from her current work status are equal to or greater than her AWW, the ALJ did
not provide the basis for this statement.
The ALJ stated Mott’s work at Bearno’s appeared to be sporadic and she
could not be expected to continue working two jobs earning a greater AWW. However, the ALJ did not provide his reason
for making that statement. The ALJ
concluded that because Mott had ceased working at RxCrossroads she could not be
expected to continue earning that wage for the indefinite future. Similarly, the ALJ failed to state his reason
for drawing that conclusion.
The ALJ alluded multiple times to the
fact that Mott could not return to the type of work she was performing at the
time of the injury and thus the three multiplier was appropriate. That is not the necessary analysis for
resolving the third prong of the Fawbush, supra, analysis. Further, as required by Adams, supra,
the ALJ only focused on Mott’s ability to perform the jobs she currently
performed at the time of the hearing for Career Staffing Solutions and
Bearno’s. As required by Adams, supra,
“a Fawbush analysis includes a broad range of factors only one of which is the
ability to perform the current job.” Id.
at 168.
Although the ALJ makes a conclusory
statement that Mott cannot be expected to continue to earn greater wages for
the indefinite future, he did not cite the evidence upon which he relied in
making that determination. He merely
stated Mott was not capable of working two jobs and it appeared she was working
sporadically. In the Order ruling on the
petition for reconsideration, the ALJ concluded the work at Bearno’s was
sporadic and was “dependent on the good will of [Mott’s] fiancé.” We note Mott did not provide any testimony
regarding her relationship with her fiancé’s family and the tentativeness of
her continued employment at Bearno’s.
That logic was supplied by Mott’s counsel and not by Mott. Moreover, that analysis only deals with
Mott’s ability to perform her job at Bearno’s.
It does not consider other factors as required by Adams, supra. The fact Mott cannot be expected to continue
working two jobs relates solely to her current employment status and not other
factors discussed in Adams, supra.
Consequently, because the ALJ’s
conclusion Mott was not earning the same or greater wages at the time of the
hearing is incorrect, the ALJ only considered Mott’s ability to perform her current
jobs in resolving the third prong of the Fawbush, supra,
analysis, and failed to provide the basis for his conclusion Mott is not likely
to earn the same or greater wages in the indefinite future, the enhancement of
Mott’s PPD benefits by the three multiplier must be vacated.
Accordingly, those portions of the
May 9, 2017, Opinion, Award, and Order and the July 25, 2017, Order determining
the bills owed to Norton Healthcare and American Pain Institute are compensable
are AFFIRMED. Those portions of the May 9, 2017, Opinion,
Award, and Order and the July 25, 2017, Order determining the bills owed to Metro Anesthesia
Consultants LLC and DPX Imaging are compensable are VACATED. This claim is REMANDED to the ALJ for a determination
of the compensability of those two medical bills in question in accordance with
the views expressed herein. In addition,
those portions of the May 9, 2017, Opinion, Award, and Order and the July 25,
2017, Order enhancing Mott’s PPD benefits by the three multiplier are VACATED. On remand, the ALJ shall engage in an
analysis based on a correct understanding of the facts and as required by Fawbush,
supra, and Adams, supra.
We express no opinion as to the outcome.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON ROBERT F FERRERI
614 W MAIN ST STE 5500
LOUISVILLE KY 40202
COUNSEL
FOR RESPONDENT:
HON CHRISTOPHER P EVENSEN
6011 BROWNSBORO PK BLVD STE A
LOUISVILLE KY 40207
ADMINISTRATIVE
LAW JUDGE:
HON R ROLAND CASE
657 CHAMBERLIN AVE
FRANKFORT KY 40601
[1] Mott explained that Iron Mountain is where
Signature stored its medical records.
[2] The only difference in the statements is the
bill filed in the record on January 16, 2017, was dated December 30, 2016.
[3] The record is silent as to when Signature
received the records. Further, the record is silent as to Mott’s employment
status at the time the claim stood submitted.