OPINION ENTERED: December 24, 2008
CLAIM NO. 04-66397
SHAWNEE TELECOM RESOURCES PETITIONER
VS. APPEAL FROM HON. R. SCOTT BORDERS,
ADMINISTRATIVE LAW JUDGE
RICKEY BLEVINS
and HON. R. SCOTT BORDERS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
VACATING AND REMANDING
* * * * * *
BEFORE: GARDNER, Chairman, COWDEN and STIVERS, Members.
STIVERS, Member. Shawnee Telecom Resources (“Shawnee”) appeals from the rulings in a medical fee dispute rendered by Hon. R. Scott Borders Administrative Law Judge (“ALJ”). Rickey Blevins (“Blevins”) underwent the implantation of a spinal cord stimulator performed by Dr. Boyer after the hearing in this matter but before the ALJ rendered his decision on the merits of the claim. Shawnee filed a medical fee dispute once it received the bills from Dr. Boyer for the surgery months after the ALJ’s decision. The ALJ found the surgery compensable. On appeal, Shawnee argues the ALJ erred in failing to consider its contention that the disputed treatment was not reasonable and necessary. It also contends the ALJ erred in holding that the 45 day rule was not applicable to the disputed bills.
The facts herein are not particularly disputed. Unfortunately, the twists and turns of the procedure in the medical fee dispute represent the more challenging issue. As will be explained below, due to the procedural morass created by the ALJ’s rulings, this claim must be remanded to the ALJ. It appears the ALJ signed orders tendered by Blevins at every opportunity rather than independently considering the arguments raised by the parties.
Blevins injured his low back on December 9, 2004 when a cable reel fell on his left foot. According to Blevins, he felt pain in his low back when he tried to push the reel off his foot. He eventually came under the care of Dr. Jerrel Boyer, who first treated him conservatively. Dr. Boyer performed a fusion surgery in June 2006. Part of the cost of the surgery was paid through state assistance. Subsequently, Dr. Boyer recommended the implantation of a spinal cord stimulator. Blevins received a temporary implant prior to the September 20, 2007 hearing in this claim.
The issue of reasonableness and necessity and work relatedness of the fusion surgery performed by Dr. Boyer and the spinal cord implant were issues in the original claim. As stated the hearing was held on September 20, 2007. Blevins underwent surgery for a permanent implantation of the spinal cord stimulator on November 5, 2007. The ALJ rendered his Opinion and Award on November 13, 2007. According to Shawnee, bills related to the November 2007 surgery were not received by Shawnee or its carrier until March 8, 2008. In the original opinion the ALJ addressed only the compensability of Blevins’ fusion surgery. While the ALJ found Blevins entitled to all reasonable, necessary and related medical expenses for treatment of his low back condition, he did not specifically address the compensability of the spinal cord stimulator.
Shawnee filed a motion to reopen/medical fee dispute to contest the reasonableness and necessity of the spinal cord stimulator on March 28, 2008. It argued the bills it received on March 3, 2008 were submitted more than 45 days after the date of service with no explanation given for the delay. It pointed out pre-certification of the spinal cord stimulator implantation was denied through Utilization Review as not reasonable and necessary. Blevins filed a response to the motion to reopen on April 12, 2008. The ALJ signed the proposed order tendered by Blevins, which stated the 45 day rule did not apply since the bills were incurred prior to the issuance of the opinion and award. The order also stated that since the compensability of the spinal cord stimulator had been raised in the original claim, it was included in the award of all reasonable and necessary medical expenses. This order was signed by the ALJ on May 16, 2008. Most significantly, it was not received at the Department of Workers Claims until May 27, 2008. According to counsel for Shawnee, this was the same date she received the order, some 11 days after it had been issued by the ALJ.
On June 4, 2008, Shawnee filed a petition for reconsideration, pointing out the discrepancy in the date of the ALJ’s order and the date it was filed in Frankfort and received by counsel. It requested the ALJ to reissue the Order with a correct date of issue pursuant to Fleur Construction Int’l v. Kirtley, 103 S.W.3d 88 (Ky. 2003). It argued the ALJ erred with regard to his decision on the 45 day rule and also disregarded uncontradicted medical evidence concerning the reasonableness and necessity of the proposed implantation of the spinal cord stimulator. Simultaneous with the filing of the petition for reconsideration, Shawnee filed a notice of appeal before this Board.
On July 2, 2008, Shawnee filed a motion to reopen before the ALJ also asking for re-issuance of the ALJ’s order. Simultaneous with that motion, Shawnee filed before this Board, a motion for partial remand, requesting that the matter be returned to the ALJ to rule on the outstanding petition for reconsideration. On July 8, 2008, the Board issued an order remanding the claim to the ALJ for consideration of the outstanding petition for reconsideration. On July 15, 2008 the ALJ rendered an order which had been tendered by Blevins overruling the petition for reconsideration as moot since an appeal had been filed to this Board. Upon the ALJ’s ruling on the petition for reconsideration, this Board removed the matter from abeyance and granted briefing time. In the interim, on August 15, 2008, the ALJ issued an order overruling Shawnee’s motion to reopen and reissued the opinion and order. Again this appears to be an order tendered by Blevins. The order stated Shawnee failed to show the opinion and award was not received by it in time to file the desired petition for reconsideration within 14 days of May 16, 2008. It further stated that when Shawnee filed its petition for reconsideration it simultaneously filed a notice of appeal with the Board removing jurisdiction from the ALJ to rule on the petition for reconsideration.
A short review of the evidence before the ALJ in the original claim follows. At the hearing, Blevins testified he underwent fusion surgery in June 2006 performed by Dr. Boyer. He further testified that the day before the hearing he had a stimulator implanted which was helping his left leg but was not helping his back condition. It was his understanding that if the stimulator helped, he was going to have a permanent one implanted. He did not know the date of that procedure.
Medical evidence was filed before the ALJ on the issue of reasonableness and necessity of the spinal cord stimulator. Dr. Boyer’s office note of November 26, 2006 states he has recommended spinal cord stimulation. In a pleading filed January 31, 2007, counsel for Blevins indicated Dr. Boyer recommended Blevins undergo surgical implantation of a spinal cord stimulator for control of his pain. In a pleading filed March 30, 2007, Blevins noted the matter had been placed in abeyance so he could receive further evaluation and treatment by Dr. Boyer following the contested fusion surgery. It also noted the fusion surgery had been performed and a spinal cord stimulator had been recommended by Dr. Boyer.
The matter of the spinal cord stimulator was sent to utilization review by Shawnee. In a report dated July 24, 2007 Dr. Russell Travis performed a utilization review and recommended denial of the spinal cord stimulator. Dr. Travis noted he first performed a medical record review on Blevins on February 27, 2006. He agreed with a previously filed report from Dr. Tutt, that there was no reason Blevins would require a lumbar fusion as his imaging study showed nothing but degenerative changes one would see in a normal 50-year-old man. Dr. Travis opined the fusion surgery would not be for the cure of her work related condition. Dr. Travis diagnosed moderately severe degenerative changes unrelated to the work injury. He stated Blevins should have reached maximum medical improvement following the work injury in about four to six weeks. He stated Blevins’ pain appeared to be more back than leg, which is not an indication for spinal cord stimulation. Blevins also had pain in both lower extremities, which again gave a poor prognosis for spinal cord stimulation. Dr. Travis found no indication in the medical records establishing the need for a spinal cord stimulator.
Before the ALJ, Shawnee submitted several medical reports and the deposition of Dr. Henry Tutt who evaluated Blevins on March 17, 2005 and August 31, 2007. As a result of the first evaluation, Dr. Tutt opined Blevins should not undergo a fusion. In his report generated as a result of the second evaluation, Dr. Tutt indicated Blevins had fusion surgery which was not successful and the cause of Blevins’ continuing complaints was inexplicable. He opined continuation of narcotic analgesics and the insertion of the spinal stimulator was ill advised. Thereafter Dr. Tutt’s deposition was taken and he expounded on his opinions rendered in his report. He explained why he did not believe the spinal cord stimulator would help Blevins’ condition and also described the complications including paraplegia that can be involved with implantation.
As previously indicated, the ALJ did not address the reasonableness and necessity of the spinal cord stimulator in his opinion and award dated November 13, 2007. The ALJ simply found Blevins was entitled to all reasonable necessary and related medical expenses for treatment of his low back. He specifically found the fusion surgery challenged by Shawnee to be reasonable, necessary and related to the work injury. In his order on the medical fee dispute, again the ALJ failed to address the reasonableness and necessity of the spinal cord stimulator. The ALJ ruled the 45 day rule set forth in KRS 342.020 did not apply because the contested medical treatment was rendered pre-award and the reasonableness and necessity of the spinal cord stimulator was encompassed in his original award of medical expenses.
On appeal, Shawnee argues the ALJ erred in failing to consider its contention that the disputed treatment was not reasonable or necessary. It points out the ALJ, in his ruling on the medical fee dispute, did not address the issue of reasonableness and necessity but merely signed a proposed order tendered by Blevins, which stated the 45 day rule did not apply since treatment was rendered 12 days before the ALJ issued his opinion and award. Shawnee also contends the ALJ erred in holding that the 45 day rule was not applicable to the disputed bills.
In response Blevins first argues Shawnee did not meet its burden of proving the contested procedure was medically unnecessary and unreasonable. He next argues the 45 day rule of KRS 342.020 does not apply. Lastly, he contends the appeal procedure followed by Shawnee is defective and the appeal should be dismissed.
We agree with Shawnee, that the ALJ should have ruled on the issue of the reasonableness and necessity of the spinal cord stimulator in his order ruling on the medical fee dispute. The fact that the ALJ signed his order on the medical fee dispute on May 16, 2007 and the order was not filed in Frankfort until May 27, 2007 and not received by the attorney for Shawnee until May 27, 2007 has contributed to the procedural quagmire in this claim. Inasmuch as it took 11 days for the order to travel from the ALJ’s desk to Frankfort, the employer was left only three days to file a petition for reconsideration. This is a mistake that should have been corrected by the ALJ re-issuing the order ruling on the medical fee dispute.
After having reviewed the state of the record and applicable statutory and case law, we have determined this matter must be returned to the ALJ so that he can finally rule on the reasonableness and necessity of the spinal cord stimulator supported by sufficient findings of fact contained in the record. It appears that at each turn the ALJ was resolute in his desire to avoid the issue. We must now render an opinion with instructions to the ALJ to enter the appropriate order on the issues raised by Shawnee.
We begin by holding the ALJ erred when he failed to re-issue his order on the medical fee dispute pursuant to Fluor Construction. The fact that the order was not filed in Frankfort until May 27, the same date Shawnee states it received the order used up 11 days of the 14 days to file a petition for reconsideration. In Fluor Construction the employer did not receive notice that its petition for reconsideration was denied until after the time for appeal expired. On the employer’s motion, the ALJ set aside the order on the petition for reconsideration and then re-entered it for the employer to perfect an appeal. The Supreme Court in its opinion addressed the ALJ’s authority to correct mistakes pursuant to KRS 342.125(1)(c) stating that the reopening statute offered the same relief as would CR 60.02. The Court held the ALJ did not abuse its discretion in granting the motion by Fluor. We believe the ALJ’s denial of Shawnee’s motion to re-issue the order on the medical fee dispute to be an abuse of discretion. The request for relief was necessitated by the ALJ’s error in not ensuring his order was more timely filed in Frankfort and served on the employer. We can find no valid reason for denying Shawnee’s request.
Pursuant to the authority granted this Board in KRS 342.285(3) we remand this matter to the ALJ. Because we believe the ALJ erred in his failure to address the issue of reasonableness and necessity in his May 16, 2008 order, rather than have the ALJ simply re-issue the order, we are instructing the ALJ to address the issue of reasonableness and necessity of the spinal cord stimulator. In doing so, the ALJ is instructed to support his findings with reference to substantial evidence in the record so as to apprise this Board and the parties of the basis for his decision and allow for meaningful appellate review. Kentland Elkhorn Coal Company v. Yates, 743 S.W.2d 47 (Ky.App. 1988); Shields v. Pittsburgh & Midway Coal Mining Co., 634 S.W.2d 440 (Ky.App. 1982).
Further, we point out there is absolutely nothing in the workers’ compensation act or regulations, which renders a petition for reconsideration moot because the party also files a simultaneous appeal. Once an ALJ rules on a petition for reconsideration, when an appeal is pending, the appeal relates forward and the matter progresses without the need for a filing of a new appeal. Whittaker v. Wright, 969 S.W. 2d 209, 211 (Ky. 1998).
Also, in furtherance of administrative economy, we agree with the ALJ to the extent the 45 day rule of KRS 342.020(1) has no application in this matter. The Supreme Court, in the case of R.J. Corman R R Construction v. Haddix, 864 S.W. 2d 915 (Ky. 1993), pointed out that KRS 342.020(1) requiring the payment of bills within thirty days of receipt of the statement for services “applies to medical statements received by an employer after an ALJ has determined that said bills are owed by the employer.” In other words it does not apply pre-award. This Board has previously held in Brown Pallet v. David Jones, supra, the reasoning of the Supreme Court in R.J. Corman Railroad Construction, supra, concerning the 30 day provision for payment of medical benefits pursuant to KRS 342.020(1) should also apply to the 45 day rule for submission of medical bills. The court in R.J. Corman stated, “Until an award has been rendered, the employer is under no obligation to pay any compensation, and all issues, including medical benefits, are justiceable.” In Brown Pallet v. Jones, the Board stated it would have been ridiculous for Jones to have submitted a bill when he and the doctor had been advised the bill would not be paid. The Board stated its belief that even if the bill had to be sent within 45 days after the treatment was rendered, the notice by Brown that it would not pay for the surgery constituted reasonable grounds pursuant to 803 KAR 25:096(6) for not submitting the bill. Since Brown Pallet advised both the doctor and Jones it would not pay for the third surgery, the Board held reasonable grounds existed pursuant to 803 KAR 25:096 Section 11(3) for not submitting the Form 114 with the bill within 60 days of the date of surgery.
In conclusion, in the interest of administrative economy, rather than instruct the ALJ to reissue the order on the medical fee dispute to allow Shawnee sufficient time to file a new petition for reconsideration, which would then be ruled upon by the ALJ, we believe the better course is to simply put this matter back before the ALJ for a proper ruling. Accordingly this matter is remanded to the ALJ for a ruling on the issue of the reasonableness and necessity of the spinal cord stimulator. Such a ruling must be supported by substantial facts in the record.
Accordingly, the previous orders of the Administrative Law Judge are VACATED in this matter is REMANDED for decision in conformity with the opinion expressed herein.
ALL CONCUR.
COUNSEL FOR PETITIONER:
HON BONNIE HOSKINS
PO BOX 24564
LEXINGTON KY 40524
COUNSEL FOR RESPONDENT:
HON WILLIAM C O REAVES
PO BOX 2557
ASHLAND KY 41105
ADMINISTRATIVE LAW JUDGE:
HON R SCOTT BORDERS
8120 DREAM STREET
FLORENCE KY 41042
