Workers’
Compensation Board
OPINION ENTERED: October 26, 2018
CLAIM NO. 200978569
INTECH CONTRACTING LLC PETITIONER/CROSS-RESPONDENT
VS.
APPEAL FROM HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE
LAW JUDGE
GEOFFREY HAMPTON; RESPONDENT/CROSS-PETITIONER
AND
SARAH SALLES, DO;
ST. JOSEPH EAST;
OKLAHOMA STATE UNIVERSITY
MEDICAL CENTER;
And HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW
JUDGE RESPONDENTS
OPINION
AFFIRMING IN PART
VACATING IN PART
AND REMANDING
* * *
* * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER,
Members.
RECHTER,
Member. Intech
Contracting, LLC appeals and Geoffrey Hampton cross-appeals from the May 7,
2018 Opinion and Order and the June 21, 2018 Order rendered by Hon. Jonathan R.
Weatherby, Administrative Law Judge (“ALJ”).
The ALJ found contested treatment at St. Joseph Hospital compensable, but found treatment at Oklahoma State
University Hospital (“OSUH”) beginning on September 12, 2017 for dysphasia,
swallowing and speech therapy, related travel expenses, and home health care
non-compensable. On appeal, Intech
argues the ALJ erred in finding the treatment at St. Joseph compensable. On cross-appeal, Hampton argues the ALJ erred
in failing to order reimbursement for mileage, to award home health care
benefits, and to find hospitalization at OSUH compensable. For the reasons set forth herein, we affirm
in part, vacate in part, and remand.
Intech
is in the business of resurfacing, maintaining and repairing bridges. Hampton is a type I diabetic and is insulin
dependent. He became disoriented because
of low blood sugar and fell sixty-two feet from a bridge on September 9,
2009. He sustained multiple injuries,
including a leg injury resulting in amputation below the knee, a C2 fracture
with spinal cord injury, C6 level ASIA-C tetraplegia, multiple spinal
fractures, lower extremity deep vein thrombosis, traumatic brain injury, vocal
cord injury, fractured teeth and underlying anxiety related to the
injuries.
In an October 6, 2014
decision, Hon. John B. Coleman, Administrative Law Judge (“ALJ Coleman”),
determined Hampton was permanently totally disabled as a result of the work
injury. He found the work injury caused
a temporary exacerbation of Hampton’s diabetic condition, and
concluded treatment for the diabetic condition after May 9, 2011 is not
compensable. Based upon a report of Dr.
Sara Salles, ALJ Coleman determined Hampton no longer needed home health
services by the time of the October 6, 2014 Opinion, and the necessary
modifications had been made to Hampton’s residence. Hampton appealed concerning the limited
period of treatment related to his diabetes.
The Board affirmed by opinion rendered March 13, 2015.
Intech filed a series of
medical fee disputes to contest the compensability of home health services,
home modifications, and additional modifications to Hampton’s boat and
automobile. It also contested treatment
rendered at OSUH between September 12, 2017 and October
2, 2017. This hospitalization occurred
after Hampton was found unresponsive at his home. After this period of hospitalization, Hampton
returned to St. Joseph on October 12, 2017. He had previously treated there following the
work accident.
The records from OSUH
indicate Hampton was admitted on October 12, 2017, and
discharged on October 25, 2017. Hampton
had been found unconscious at his home with a high glucose level and vomit in a
wastebasket beside him. He had severe
end organ damage and was intubated.
Hampton was seen on September 20, 2017, due to concern for vocal cord
paralysis. A September 28, 2017 addendum
noted physical therapy found Hampton was independent with activities of daily
living. Discharge diagnoses included:
acute respiratory failure secondary to low GCS and tachypnea, status post
tracheostomy placement for extended ventilator weaning and subsequent
discontinuation of tracheostomy; acute renal failure secondary to hypoperfusion
in the setting of profound volume depletion secondary to diabetic ketoacidosis;
diabetic ketoacidosis with coma; diabetes mellitus insulin dependent; high
anion gap metabolic acidosis secondary to diabetic ketoacidosis and uremic
failure; hypovolemia secondary to diabetic ketoacidosis; NON-ST segment
elevation myocardial infarction type 2 secondary to profound hypotension;
methicillin sensitive staphylococcus aureus pneumonia, status post nafcillin
with an end date of 9/27/17; polysubstance abuse; thrombus secondary to PICC
line placement of the right upper extremity basilic vein; tracheostomy
placement with subsequent discontinuation; and percutaneous endoscopic
gastrostomy placement. Hampton was
directed to follow up with W. W. Hastings Indian Health Clinic.
Hampton
returned to St. Joseph on October 12, 2017.
Hampton’s father reported the hospitalization in Oklahoma and noted
Hampton had a tracheotomy. Since that
time, his voice had been severely worse.
Hampton had trouble swallowing which has been recurrent for eight
years. He has a sensation of something
being caught in the back of his throat.
Dr. Robert Wilson diagnosed paralysis of vocal cords and larynx,
unilateral; choking sensation uncontrolled; dysphonia; dysphagia unspecified;
edema of larynx; and cerebral infarction, unspecified. On October 25, 2017, Hampton reported his
condition was much improved. His
swallowing was better and his voice was back to
baseline. Hampton wanted a referral for
evaluation for surgery to improve his voice and was referred to Dr. Archer at
UK ENT for evaluation.
Hampton introduced the
August 9, 2016 deposition and medical records of Dr. Salles, a rehabilitation
physician with a specialty in spinal cord injuries and medical director of the
spinal cord injury unit at Cardinal Hill Rehabilitation Hospital in Lexington. Dr. Salles has treated Hampton for spinal
injuries including an incomplete spinal cord injury with improvement in
neurological function and strength. He
also suffered a traumatic brain injury resulting in some swallowing and vocal
difficulty. Hampton is classified as an
incomplete tetraplegic, meaning he has movement in all body parts but has some
degree of paralysis in all four limbs.
Dr. Salles stated Hampton’s car and boat needed modifications from a
safety standpoint. She found that
requested modifications were reasonable and necessary. Dr. Salles noted most homes are not
accessible because the doorways are too narrow and
rooms often do not have enough room to turn around in a wheelchair. Dr. Salles recommended an assessment for
potential modifications regarding wheelchair access and making the home
safe. She agreed a motorized wheelchair
was reasonable because Hampton did not always wear his prosthesis. She noted Hampton was unable to navigate on
uneven surfaces. Dr. Salles stated the
X8 Extreme wheelchair is an all-terrain wheelchair and is reasonable and
necessary due to his work injury. Dr.
Salles stated Hampton received home health services and required assistance in
his home. Dr. Salles felt Hampton would
need assistance with medical needs, wound care issues, childcare, shopping, and
laundry. Dr. Salles agreed that Hampton
can take care of some of his wound issues, but others are not visible to him.
On cross-examination,
Dr. Salles noted Hampton is unable to access parts of his mother’s home, where
he was living as of December 14, 2015, because of issues with the entryways,
bathroom and kitchen. She agreed that in
2013 Hampton could drive safely. She
noted the speech/language pathology clinic completed their workup and
recommended speech and language therapy.
Hampton testified he has
had trouble speaking and swallowing since his work injury. He acknowledged testing positive for cocaine
and marijuana in Oklahoma and indicated his doctors were aware of his use of
marijuana for pain. He acknowledged he
was intubated and had a tracheostomy due to pneumonia during the
hospitalization at OSHU. He later
received further treatment at St. Joseph, explaining his swallowing and speech
have improved since these visits in October 2017. The new techniques at St. Joseph produced a
great improvement in his condition, which is now better than before the
incident in Oklahoma.
Relating to the
compensability of home health care services, Hampton submitted Form 114s from
Jamie Blankenship for performing duties such as cleaning, vacuuming, laundry,
getting groceries, assistance in exercising and taking his children to
activities. Hampton stated he has
continuously needed assistance from home health services and he could not
recall Dr. Salles stating the services were no longer needed. Hampton stated he goes to the gym to work
with free weights and swim four or five days per week but is unable to bend and
vacuum.
A
number of medical records from the period after the work accident but
prior to Hampton’s hospitalization at OSUH were introduced, to establish his
ongoing treatment needs and physical condition.
Hampton sought treatment at the Cherokee Nation Hastings Hospital
emergency room on September 11, 2015, for complaints of back pain, status post
back surgery, and chronic neck and lower back pain. Hampton stated his speech was slurred due to
chronic hoarseness after a tracheostomy.
He also requested a referral to an ENT.
Hampton’s discharge diagnosis was chronic back pain. Hampton refused any medications except for
controlled substances. Hampton returned
to the emergency room on September 15, 2015, for an exacerbation of chronic
back pain. Hampton was noted to be very
difficult to understand due to speech problems.
Hampton stated he had not been on medication for two months. He was discharged with medications.
Hampton
introduced medical records of St. Joseph, where he was seen on June 26,
2014. Hampton complained of difficulty
swallowing, speaking, moving his tongue, large amounts of saliva, hoarseness
and choking. He gave a history of the
work accident and subsequent physical therapy for five years to improve his
swallowing. Hampton had a laryngoscopy
on that date. He was diagnosed with
dysphagia; symptoms involving head and neck: dysphonia; diabetes mellitus NOS;
and cerebrovascular accident. Hampton
was seen for the same diagnoses on March 7, 2016.
Intech submitted medical
records of Cardinal Hill Hospital where Hampton was evaluated on January 6,
2016. Hampton was diagnosed with muscle
weakness, neck pain, and spinal cord injury.
Hampton was seen on April 14, 2016, for a swallowing assessment. Hampton chokes when drinking water from a cup and/or liquids from a can. Hampton reported he had not had pneumonia in
the past.
Intech relied upon the opinion
of Dr. Timothy Pettingell, Hampton’s treating
physician in Oklahoma, who, following a May 25, 2017, visit, recommended
against use of narcotic medications and marijuana, which is not legal in
Oklahoma. Dr. Pettingell
recommended non-narcotic pain management.
Following a June 8, 2017 office visit, he noted Hampton made repeated
forceful requests for narcotics/marijuana.
Intech also contested expenses related to a September hospitalization in
Oklahoma following a hyperglycemic event, and treatment at St. Joseph through October
25, 2017.
The
ALJ made the following findings relevant to this appeal:
After
review of the evidence, it is determined that the Plaintiff’s submission of a
form 114 for travel expenses to Hasting Hospital in Tahlequah, Oklahoma, and
treatment for diabetes mellitus on November 10, 2015, along with home, car, and
boat modifications is decided as follows:
The
ALJ finds that the ruling of ALJ John Coleman on October 6, 2014, that medical
expenses for the treatment of diabetes mellitus after May 9, 2011, is
non-compensable is dispositive and that any treatment related to diabetes
mellitus after said date is non-compensable. The ALJ further finds that the
mileage for the trip to Oklahoma was not medically directed by the designated
physician and is likewise disallowed per KRS 342.020(5) and 803 KAR 25:096 §3.
The
ALJ finds that Dr. Salles testified in favor of the requested modifications to
the Plaintiff’s vehicle, boat, and home, but there is convincing evidence in
the record indicating that the Plaintiff is able to
safely operate a vehicle without modifications and that Dr. Salles determined
that the requested modifications were not needed in August of 2013. The ALJ
therefore finds that the recommendation of Dr. Salles regarding an assessment
for potential modifications pertaining to the home, car, and boat is reasonable
and necessary as it pertains to the home and boat only.
The
ALJ finds that with respect to the home health care rendered by Mr. Blankenship
that in a deposition of Dr. Salles, dated August 30, 2013, she stated that the
Plaintiff "is independent with activities of daily mobility, and
homemaking, if he chooses to do those things.” It was also noted in the prior
referenced opinion that the Plaintiff’s independence had actually
improved his hospitalization for diabetic ketoacidosis, and
polysubstance abuse. The ALJ therefore likewise finds that the home health care
is not reasonable or necessary and is thus non-compensable.
The
ALJ finds that with respect to the treatment rendered by St. Joseph ENT, that
the Plaintiff presented with difficulty swallowing that had been recurrent for
eight years. The ALJ finds that the issue of dysphagia was squarely addressed
by ALJ Coleman and is compensable going forward. The ALJ finds that these expenses are
therefore reasonable, necessary, and causally work-related. They are therefore
compensable herein. The ALJ is unpersuaded by the issue of collateral estoppel
as the nature of medical fee disputes in certain circumstances renders that
doctrine inapplicable due to the changing nature of medical issues. This
[Plaintiff] has been experiencing issues with swallowing and speech that could
only be related to the work injury and should be the responsibility of this
Defendant.
The
ALJ finds that the treatment rendered in Oklahoma in 2017, is not reasonable or
necessary as the Plaintiff sought treatment that was not legal and or
recommended by any physician qualified or designated herein. This treatment is
therefore not compensable.
Both parties filed
petitions for reconsideration. The ALJ
denied the petitions, stating that the underlying Opinion and Order “was based
upon the credible evidence as determined by the ALJ as well as the prior findings
and conclusions reached by ALJ Coleman to which the current ALJ is bound.”
On appeal, Intech argues
the finding of compensability of the treatment at St. Joseph from and after
October 12, 2017 is not supported by substantial evidence. Intech contends the contested treatment is
due to new findings and new vocal fold paralysis with worsening symptoms
related to the intubation and tracheostomy caused by the non-work-related
diabetic condition and/or polysubstance abuse.
Intech further asserts Hampton failed to follow medical advice by using
non-prescription marijuana and cocaine, causing him to suffer diabetic
consequences of hypoglycemia and ketoacidosis, resulting in the tracheostomy,
vocal fold paralysis, and emergency treatment.
Intech argues the treatment at St. Joseph resulted from the incident in
Oklahoma rather than from the work injury, rendering the treatment at St.
Joseph after October 12, 2017, non-compensable.
We
find no error in the ALJ’s finding that treatment at St. Joseph in 2017 is
compensable. KRS 342.020 (1) provides
that “the employer shall pay for the cure and relief from the effects of an
injury the medical, surgical, and hospital treatment, including nursing
medical, and surgical supplies and appliances, as may reasonably be required at
the time of the injury and thereafter during disability...” Intech focuses on a statement in the Cardinal
Hill discharge summary indicating that Hampton’s speech and language are
intact. It interprets this statement to
mean he required no further treatment.
However, Hampton has had ongoing difficulties with swallowing and
speaking since his work accident. Records
from Dr. Salles establish the continuing nature of the problems. Further, Dr. Salles testified Hampton has had
an ongoing need for ENT, swallowing, speech and neuro-ophthalmology treatment for
the last several years and those needs are finally being addressed. The St. Joseph note on October 12, 2017
records a history of recurrent difficulty swallowing for about eight
years. Hampton testified the new
techniques made his speech and swallowing better than it had been at any time
since the accident. Substantial evidence
supports the conclusion that the treatment at St. Joseph qualifies as treatment
that provided for the cure or relief from the effects of the accident.
On
cross-appeal, Hampton first argues the ALJ erred in failing to award mileage
reimbursement for treatment in Oklahoma submitted to Intech in November and
December 2015. Hampton testified he only
sought treatment in Oklahoma because the carrier would not approve treatment,
and he qualified for treatment under “Cherokee Nation.” Hampton also observes Intech failed to file a
medical dispute within 30 days. He
further notes the medical records establish he sought treatment for multiple
pain syndromes that Dr. Salles relates to the work injury.
Intech
challenged travel expenses as part of its first motion to reopen based upon the
report from the November 10, 2015 visit that indicated the treatment was for
diabetes. Based upon ALJ Coleman’s
decision limiting the compensable period of treatment to the period of
exacerbation and the treatment record indicating the treatment was for
diabetes, Intech was under no obligation to file a dispute within 30 days
regarding the Form 114 for the travel expense for that treatment. Intech is not liable for expenses for any
visits for treatment related to diabetes.
Next,
Hampton argues the ALJ erred in failing to award home healthcare benefits. Hampton asserts he never needed home
healthcare services prior to the work injury.
Dr. Salles testified individuals in Hampton’s position generally require
ongoing care. He required the services
in the past and Dr. Salles noted homemaking tasks of laundry and shopping do
not go away. She noted there are days
when he cannot use the prosthesis because of a wound and would have to rely on
other people.
Dr.
Salles, prior to ALJ Coleman’s decision, had stated Hampton was “independent in
activities of daily living if he chooses to do those things.” Hampton later left his mother’s home and
lived independently in Oklahoma for a year and a half. The ALJ simply was not persuaded that
Hampton’s need for home health care was any greater than at the time of ALJ
Coleman’s decision. The evidence does
not compel a contrary finding.
Finally,
Hampton argues the ALJ erred in finding the hospitalization at OSUH
non-compensable. He notes the first
discharge summary discussed that the chronic respiratory issues and ongoing
chronic aspiration likely was related to the work injury eight years
earlier.
In
determining the compensability of the hospitalization, an ALJ is required to
provide a sufficient basis to support his
determination. Cornett v. Corbin
Materials, Inc., 807 S.W.2d 56 (Ky. 1991).
Parties are entitled to findings sufficient to inform them of the basis for the ALJ’s
decision to allow for meaningful review. Shields v. Pittsburgh and Midway Coal
Mining Co., 634 S.W.2d 440 (Ky. App. 1982).
While an ALJ is not required to engage in a detailed discussion of the facts or set forth the minute details
of his reasoning in reaching a particular result, he is required to set forth
adequately the basic facts upon which the conclusion was drawn so the parties are reasonably apprised
of the basis of the decision. Big
Sandy Community Action Program v. Chaffins, 502 S.W.2d 526 (Ky. 1973).
Here, the ALJ failed to
provide sufficient findings of fact and conclusions of
law to apprise the parties and this Board
of his rationale in finding the hospitalization in Oklahoma
non-compensable. Intech filed two
disputes concerning treatment in Oklahoma.
The first involved Hampton seeking the resumption of narcotic medication
and referral to pain management that would include marijuana. The second involved the hospitalization in
2017. The sole basis identified by the
ALJ for the denial of medical benefits in Oklahoma in 2017 was that Hampton
“sought treatment that was not legal and or recommended by any physician qualified
or designated herein.” This is an
adequate basis to deny the resumption of narcotic medication or referral to a
pain clinic with marijuana, and it is supported by Dr. Pettingell’s
opinion. However, the ALJ’s finding does
not adequately address the dispute regarding the hospitalization. There is no indication the treatment was not
legal or that it was not recommended by a qualified physician. The ALJ made no findings regarding the reason
for the hospitalization. The record
contains evidence that could support differing conclusions regarding the reason
for Hampton’s hospitalization. Intech
argued Hampton’s condition was the result of his diabetes and/or illegal use of
cocaine and marijuana against the advice of his physician, rendering the
treatment non-compensable. Hampton
points to the discharge note from OSUH indicating the chronic respiratory
issues and his chronic ongoing aspiration likely are related to his injury and
therefore compensable. On remand, the
ALJ must determine whether the hospitalization resulted from conditions related
to the work injury or from non-work-related conditions or factors.
Accordingly, the May 7,
2018 Opinion and Order, and the June 21, 2018 Order rendered by Hon. Jonathan
R. Weatherby, Administrative Law Judge, are hereby AFFIRMED IN PART, VACATED IN PART AND REMANDED.
ALL
CONCUR.
DISTRIBUTION:
COUNSEL FOR PETITIONER/CROSS-RESPONDENT: LMS
HON. WALTER A. WARD
333 WEST VINE STREET,
STE. 1100
LEXINGTON, KY 40507
COUNSEL FOR RESPONDENT/CROSS PETITIONER: LMS
HON. CHARLES W. GORHAM
3151 BEAUMONT CENTRE
CIR #202
LEXINGTON, KY 40513
RESPONDENTS:
ST. JOSEPH EAST USPS
150 NORTH EAGLE CREEK
DR.
LEXINGTON, KY 40509
SARAH SALLES D.O. USPS
CARDINAL HILL
REHABILITATION HOSPITAL
2050 VERSAILLES RD.
LEXINGTON, KY 40504
OKLAHOMA STATE
UNIVERSITY MEDICAL CLINIC USPS
744 W. 9TH
STREET
TULSA, OK 74127
ADMINISTRATIVE LAW JUDGE: LMS
HON. JONATHAN R. WEATHERBY
ADMINISTRATIVE LAW
JUDGE
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601