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November 9, 2017 201601817

Commonwealth of Kentucky 

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.