*/
Workers’
Compensation Board
OPINION ENTERED: April 6, 2018
CLAIM NO. 200588279
CARDIOVASCULAR ASSOCIATES, PSC PETITIONER
VS.
APPEAL
FROM HON. JEANIE OWEN MILLER,
ADMINISTRATIVE LAW JUDGE
CHRISTINE JOHNSON,
DR. RODNEY CHOU,
AND HON. JEANIE OWEN MILLER,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Cardiovascular
Associates, PSC (“Cardiovascular Associates”) appeals from the November 20, 2017
Opinion, Award and Order rendered by Hon. Jeanie Owen Miller, Administrative
Law Judge (“ALJ”). In a reopening for a
medical dispute, the ALJ determined the contested treatment is compensable. On appeal, Cardiovascular Associates argues the ALJ impermissibly relied on the opinion of an APRN
who does not meet the definition of a physician in KRS 342.0011(32). For the reasons set forth herein, we
affirm.
Christine Johnson (“Johnson”) sustained
injuries to her cervical spine and left shoulder on April 1, 2005. Her treatment included a laminectomy and C6-7
anterior discectomy and fusion. Johnson’s
claim was resolved by settlement approved on July 22, 2010.
Cardiovascular
Associates filed a motion to reopen and Medical Fee Dispute on June 5, 2017 to
challenge the reasonableness/necessity and/or work-relatedness of treatment by
Dr. Rodney V. Chou of the Thompson & Chou Center for Pain Management and
Rehab-Indiana, including prescriptions for Butrans patches, a compound cream,
and Skelaxin. Butrans is a transdermal
patch containing the opioid Buprenorphine.
Cardiovascular Associates supported the
motion with the March 6, 2017 report and September 21, 2017 addendum report of
Dr. Ellen M. Ballard, who conducted an independent medical examination. Upon consideration of Johnson’s diagnosis and
treatment history, Dr. Ballard felt reasonable treatment would include use of a
TENS unit, exercise, occasional Skelaxin use, and weaning from narcotics.
Dr. Ballard explained Skelaxin should
only be needed rarely and “would not require the use of continuous medication.” She predicted the prescription would need to be
refilled once per year, and could be used when Johnson experiences significant
spasms. Likewise, Dr. Ballard opined
Butrans patches are reasonable and necessary, assuming Johnson would be weaned
from all narcotics over approximately three months. However, Dr. Ballard indicated the compound cream
is not reasonable and necessary. She
noted compound creams have no proven efficacy, are not FDA approved, and the
cost outweighs the benefits they potentially provide.
Cardiovascular Associates also filed
the April 26, 2017 medical record of Dr. Chou.
His report contained a summary of treatment from July 30, 2014 through
April 26, 2017. Dr. Chou noted on August
18, 2016, “Butrans 10 works very well for her.
She has little pain but continues with stiffness in the neck.” On November 10, 2016 he noted, “Continues
with Butrans, uses Skelaxin PRN[.]
Compound cream helps quite a bit.”
On April 26, 2017 he noted, “Stable with Butrans[.] She is able to get out and go for walks with
the pain controlled.” Dr. Chou explained
his treatment plan:
Will
continue with the Butrans[.] Okay to refill the Skelaxin when requested[.] She requires the medication to maintain
mobility and ADLs[.] The patient has
increased quality of life with the pain control from the Butrans as it allows
her to be more active and get outside for exercise[.] This improves the patients mood and health[.]
Inspect reviewed and is consistent[.]
Continue with the compounding cream as this has helped her
significantly[.] UDS RTC 3 mos[.] Opioid
risk is low.
Johnson submitted the July 19, 2017
report of Autumn Allgeier, APRN, who works in Dr. Chou’s office. She noted Johnson has decreased her pain
medication to its lowest level possible over the prior two years, which allows
her to function independently. Johnson
currently uses a Butrans patch once per week, providing predictable and
continuous relief of pain over a seven-day period. She takes Skelaxin only as needed, with one
prescription often lasting a complete year.
Regarding the compound cream, Ms.
Allgeier noted the cream enables Johnson to be maintained on minimal doses of
narcotics and muscle relaxants. Use of
the cream is safer than increasing her pain medication and/or muscle
relaxants. Johnson’s exercises and the
current medication regimen have allowed a reduction in the dose of opioid
analgesia over the past few years. Ms.
Allgeier indicated the medications are necessary for Johnson to maintain independent
function in her activities of daily living.
The
ALJ first considered the reasonableness and necessity of the Butrans patches,
compound cream, and Skelaxin:
With regard to the issue of the
reasonableness and necessity of the medications challenged in this case – the
challenge has many similarities to the case of Square D Co. v. Tipton,
862 S.W.2d 308 (Ky. 1993), cited above. The court in that case stated:
While the injured worker
must be given great latitude in selecting the physician and treatment
appropriate to her case, the worker's freedom of choice is not unfettered. KRS
342.020(3) indicates that the legislature did not intend to require an employer
to pay for medical expenses which result from treatment that does not provide
"reasonable benefit" to the injured worker. An employer may not
rely on this section simply because he is dissatisfied with the worker's
choice, for example, or because the course of treatment is lengthy, costly, or
will not provide a complete cure. We believe, however, that this
section relieves an employer of the obligation to pay for treatments or
procedures that, regardless of the competence of the treating physician, are
shown to be unproductive or outside the type of treatment generally
accepted by the medical profession as reasonable in the injured worker's
particular case. We also believe that such decisions should be made by the ALJs
based on the particular facts and circumstances of each case, so long as there
is substantial evidence to support the decision. (emphasis ours)
The burden to prove the Skelaxin, the Butrans patches and the compound
cream are unreasonable or unnecessary is upon the defendant/movant. In the opinion
of the undersigned, Dr. Ballard’s opinion(s) fall short of those standards of
proof. Here, Dr. Ballard has examined the plaintiff on one occasion.
Significant to the undersigned is that Dr. Ballard gives an opinion that the Butran Patches and
the Skelaxin are reasonable if given in different doses. She also opines that a
TENS unit, exercise and Skelaxin occasionally, should allow the plaintiff to be
weaned from all narcotics. While
this may very well be a reasonable medical treatment, that is not the issue –
the issue is whether Dr. Collis’[1]
medical treatment is unreasonable or unnecessary.
Dr. Ballard’s statement that the compound cream “have no proven
efficacy” cites no specific study and certainly no specific application of that
general statement to the plaintiff’s situation. She also states that the
compound creams are “not FDA approved and the cost of [the] compound cream
outweighs the benefits that they potentially provide.”
That statement is not supported by any study and is not consistent with
the findings in the office chart of Dr. Collis.
While the compound cream is expensive, that alone is not a sufficient
reason to find them unreasonable or not necessary --- see the Tipton
case above.
I find that the defendant/movant has not
proven that the contested medications are unreasonable or medically unnecessary
for the “cure and relief” of Mr. Johnson’s work injury. I find that the medical
treatment provided by her treating physician and APRN are reasonable and
medically appropriate. These providers are in a unique position of observing
the plaintiff – and have a professional duty to attempt a “cure and/or relief”
for the plaintiff’s work injury. I find that they are doing so in this
challenge. The medical dispute is found
in favor of the plaintiff.
On appeal, Cardiovascular Associates argues the ALJ erred
in relying on the opinion of Ms. Allgeier, an APRN. There is no indication that Dr. Chou reviewed
or approved the report of Ms. Allgeier, so her report cannot constitute a
medical report as defined in 803 KAR 25:010§10. Cardiovascular Associates notes “physician”
is defined in KRS 342.0011(32) as “physicians and surgeons, psychologists,
optometrists, dentists, podiatrists, and osteopathic and chiropractic
practitioners acting within the scope of their license issued by the
Commonwealth.” Because an APRN is
outside the definition of a physician, Cardiovascular Associates asserts her
opinions cannot constitute substantial evidence on a medical question. Cardiovascular Associates contends Dr.
Ballard’s opinion is the only substantial evidence of record, compelling a
finding in its favor.
Cardiovascular Associates bore the burden of proof as to whether the contested medical treatment is unreasonable
or unnecessary. National Pizza
Company v. Curry, 802 S.W.2d 949 (Ky. 1991). Because Cardiovascular Associates was
unsuccessful in its burden, the question on appeal is whether the evidence
compels a different result. Wolf
Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). “Compelling evidence” is defined as evidence
that is so overwhelming, no reasonable person could reach the same conclusion
as the ALJ. REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky. App.
1985). The function of the Board in reviewing the ALJ’s decision is
limited to a determination of whether the findings made by the ALJ are so
unreasonable under the evidence they must be reversed as a matter of law.
Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).
Dr. Ballard agreed a prescription for
Skelaxin once a year is reasonable. Dr.
Chou’s ARPN indicated that is the current level of Johnson’s use of
Skelaxin. We find no error in the ALJ’s
determination that Skelaxin is compensable.
With respect to the compound cream, we
disagree the ALJ was obliged to rely upon Dr. Ballard or that her opinion is
the only substantial evidence in the record.
Cardiovascular Associates bore the burden of establishing the compound
cream is unreasonable or unnecessary.
Dr. Ballard provided an opinion on this issue, but the ALJ was not
required to accept it. In fact, the ALJ
provided a detailed explanation as to why she found Dr. Ballard’s opinion
overly broad, unsupported by documented studies, and otherwise unpersuasive.
Dr. Chou specifically addressed the
efficacy of the cream in Johnson’s care, noting it helped her “significantly”
and “quite a bit.” Dr. Chou also
indicated Butrans “works very well for her” and she had increased quality of
life with the pain control from Butrans.
Dr. Chou’s April 26, 2017 treatment note constitutes substantial
evidence supporting a conclusion that the contested medications provide relief
from the effects of the work injury and are therefore compensable.
While Ms. Allgeier does not qualify as
a physician as defined in KRS 342.0011(32) and is therefore not authorized to
offer medical opinions, she is qualified to offer factual testimony regarding
aspects of Dr. Chou’s medical records such as the history contained therein,
and the frequency and doses of medication.
We note Cardiovascular
Associates never objected to the introduction of Ms. Allgeier’s
report.
While Cardiovascular Associates has identified evidence
supporting a different conclusion concerning the reasonableness and necessity
of the contested medications, there was substantial evidence presented to the
contrary. As such, the ALJ acted within
her discretion to determine which evidence to rely upon, and it cannot be said
the ALJ’s conclusions are so unreasonable as to compel a different result. Ira A. Watson Department Store v. Hamilton,
34 S.W.3d 48 (Ky. 2000).
Accordingly, the November 20, 2017 Opinion, Award and Order rendered by Hon. Jeanie Owen Miller, Administrative Law Judge, is hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON ROBERT F FERRERI
614 WEST MAIN STREET
SUITE 5500
LOUISVILLE, KY 40202
RESPONDENT,
MEDICAL PROVIDER:
DR. RODNEY CHOU
THOMPSON & CHOU CENTER
1931 WEST STREET
SUITE B
NEW ALBANY, IN 47150
COUNSEL
FOR RESPONDENT:
HON WAYNE C DAUB
600 WEST MAIN STREET
SUITE 300 – THE 600 BUILDING
LOUISVILLE, KY 40202
ADMINISTRATIVE
LAW JUDGE:
HON JEANIE OWEN MILLER
ADMINISTRATIVE LAW JUDGE
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
[1]
Dr. Collis provided care prior to Dr. Chou.
References to Dr. Collis are apparent clerical errors, with the ALJ
intending to refer to Dr. Chou’s care.
