OPINION ENTERED: December 30, 2008
CLAIM NO. 94-23965
SILAS MILLER PETITIONER
VS. APPEAL FROM HON. JOSEPH W. JUSTICE,
ADMINISTRATIVE LAW JUDGE
BENCO MINING, INC.
DR. GREGORY WHEELER/
SPINE & BRAIN NEUROLOGICAL CENTER
DR. THOMAS KARELIS
and HON. JOSEPH W. JUSTICE,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION AFFIRMING
* * * * * *
BEFORE: GARDNER, Chairman, COWDEN and STIVERS, Members.
COWDEN, Member. Silas Miller (“Miller”) appeals from the decision of Hon. John W. Thacker, Administrative Law Judge (“ALJ”) in a medical fee dispute and from the order of Hon. Joseph W. Justice, ALJ ruling on Miller’s petition for reconsideration. The ALJ determined treatment with Dr. Thomas Karelis and prescriptions for Zanaflex were reasonable and necessary. However, the ALJ determined the prescription for Mobic was not related to Miller’s work injury and was not necessary for the work-related injury. Further, the ALJ determined proceedings by the defendant/employer were not unreasonable within the meaning of KRS 342.310. On appeal, Miller argues the ALJ erred by finding Miller had the burden of proof. Miller argues the medical fee dispute was defective since Dr. Karelis was only added as a party and the medical fee dispute was not amended. Finally, Miller argues entitlement to an attorney fee pursuant to KRS 342.310.
As a result of a 1994 cervical injury, Miller was awarded a permanent total disability on June 19, 1996. Benco Mining, Inc. (“Benco”) filed a medical fee dispute on September 6, 2006 challenging treatment with Spine & Brain Neurosurgical Center (“Spine & Brain”). Benco challenged the necessity of seeing a specialist for the renewal of prescriptions and the frequency of Miller’s visits.
In support of the medical fee dispute, Benco filed the report of Dr. Lisa Gill who stated chronic medication management was reasonable. However, it was not necessary to see a pain management specialist as the claimant could be seen by his primary care physician for that purpose. Dr. Gill stated continued office visits every three months were not medically necessary. She indicated one or two visits per year for medication renewals would be reasonable as Miller’s narcotic compliance had been very good. She noted his medications were essentially unchanged over the past years. Dr. Gill stated Zanaflex and Lortab were medically necessary.
Benco filed the report of Dr. Russell L. Travis who performed an independent medical evaluation on January 22, 2007. He reviewed extensive medical records as well as cervical and lumbar MRIs. He diagnosed tension headaches, complaints of low back pain of an undetermined etiology, complaints of neck pain and pain in both upper extremities of undetermined etiology. He stated monthly or quarterly office visits just for renewal of prescriptions of Lortab and Zanaflex were not appropriate or indicated. He felt Miller should have a cervical MRI and, once he had an opportunity to review the MRI, he could make a better determination for future supervised medical treatment. In a December 3, 2007 addendum, Dr. Travis stated he had reviewed a CD ROM with the images of a November 15, 2000 cervical MRI. He stated there was no evidence of a soft disc herniation or any problems one could relate to an acute injury. Dr. Travis indicated he could see no reason for any office visits either monthly or every three months and clearly no reason to continue Lortab and Zanaflex. He stated the prescriptions provided by Spine & Brain were neither reasonable nor necessary. He stated Miller should be weaned from opiates, placed in an aggressive cervical rehabilitation program and returned to light duty.
Benco filed a motion to join Dr. Karelis on December 21, 2007. Benco’s motion noted treatment by Dr. Karelis had been submitted to utilization review and Benco filed the report of Dr. Paul R. Riggs. Dr. Riggs reviewed various medical records and spoke with Dr. Karelis. Dr. Riggs noted Dr. Karelis explained he saw Miller on a monthly basis due to problems with chronic narcotic prescriptions in his region. Dr. Karelis indicated most providers would not give refills of narcotic prescriptions in the region where he practices. Dr. Riggs stated ongoing office visits were not medically necessary and monthly visits were not necessary. He noted Miller had been seen on a regular basis for several years with no change in treatment other than refilling medications. He indicated Miller may need periodic visits for re-evaluation and refill of pain medications every six months. Dr. Riggs indicated continued use of Zanaflex and Mobic were not medically necessary. He indicated Lorcet should be used judiciously only.
Dr. Karelis was joined as a party by order dated January 7, 2008. Miller filed an objection and motion to strike the report of Dr. Riggs on January 16, 2008. As grounds for the motion, Miller alleged the parties had agreed Miller could continue to treat with his new designated physician and receive medication. A BRC was held on January 29, 2008 at which time Miller’s motion to strike was overruled. Contested issues were listed as 1) compensability of monthly office visits with Dr. Karelis and 2) compensability of Zanaflex and Mobic.
Miller filed a letter from Dr. Karelis which indicated the doctor began treating Miller on February 19, 2007. Dr. Karelis stated he felt his treatment was medically necessary and appropriate and noted he had decreased the amount of narcotic medications Miller was currently taking. Dr. Karelis stated he required his patients who take narcotic medications to come to the office in person every month. He stated this is standard for most physicians practicing in eastern Kentucky and noted there were problems in eastern Kentucky with illicit narcotic medications. Dr. Karelis stated it was his belief it was good medicine to carefully monitor all patients and make adjustments to their treatment plans as needed.
Miller testified at the hearing held May 7, 2008. He stated his pain was getting worse and his hands felt like they were being crushed in a vise. Miller stated he had taken Flexeril, but it did not work and he was later switched to Zanaflex. He stated he had been having headaches every night and his neck would tighten up, but the Zanaflex helped. Dr. Karelis lowered the use of Lorcet from 5 to 3 times a day. Miller said he had been going to Spine & Brain every three months and compensation wanted him to be seen only once or twice a year. That was the reason Spine & Brain quit seeing him. He stated Dr. Karelis monitored his medication monthly and he had to take a drug screen. Miller stated he understood Mobic was an arthritis medicine and he had been told by different doctors to take the medication otherwise arthritis would set up in his neck and arms. Miller indicated it was hard to find a doctor who would prescribe pain medication. Miller acknowledged he had been discharged from Spine & Brain prior to the benefit review conference.
A March 16, 2007 letter from counsel for Benco to counsel for Miller was attached as an exhibit to the hearing. Benco’s counsel indicated an agreement had been reached at the BRC allowing Miller to designate a new Form 113 physician as he had been discharged from Spine & Brain. Counsel further noted Miller agreed to allow a file review in order to make a settlement offer. Counsel requested Miller provide a copy of his social security disability information as well as a copy of his Medicare card. A March 23, 2007 letter from Miller’s attorney to counsel for Benco indicated a completed Form 113 was enclosed. A copy of the Form 113 signed on March 21, 2007 was also attached as an exhibit. That form designated Dr. Karelis as Miller’s physician.
After reviewing the evidence, the ALJ made the following findings of fact and conclusions of law:
The Administrative Law Judge finds that the medical treatment provided by Dr Thomas Karelis, including the prescriptions Zanaflex and monthly office visits, are reasonable and necessary for the cure and/or relief of the plaintiff’s work related injuries, as the Administrative Law Judge finds the opinion of Dr. Thomas Karelis to be the most credible. Dr. Karelis opined that his treatment is medically necessary and appropriate and has decreased the amount of narcotic medications that Mr. Miller is currently taking. Dr. Karelis noted he felt confident that Mr. Miller is receiving benefit from the treatment plan. He does require his patients that take narcotic pain medication to come in the office in person every month and stated this is standard practice for most of [sic] all physicians in Eastern Kentucky due to problems in Eastern Kentucky with illicit narcotic medications. Dr. Karelis believes it is good medicine to carefully monitor all of his patients and make adjustments to their treatment plans as needed. The opinion of Dr. Karelis is supported by the testimony of the plaintiff that the Zanaflex prescribed by Dr. Karelis helped. When he first saw Dr. Karelis, he lowered his pain medication and switched him to the Zanaflex which helped. He takes it twice a day and the lower medication is making him feel livelier. Dr. Karelis monitors his medication monthly and he has to take a drug screen. The Administrative Law Judge finds the medical treatment provided by Dr. Karelis to the plaintiff is reasonable and necessary pursuant to KRS 342.020.
The Administrative Law Judge finds that the defendant/employer shall not be responsible for payment of medical expenses related to the prescription Mobic, as the Administrative Law Judge does not find from the evidence that Mobic is related to the plaintiff’s work related condition. The plaintiff has the burden of proof and the risk of non persuasion to convince the trier of fact of each and every element of his claim. Snawder v. Stice, 576 S.W. 2d 276 (Ky. App. 1979). The Administrative Law Judge is unconvinced from the evidence that Mobic is necessary for the plaintiff’s work related injury.
The Administrative Law Judge finds that the proceedings by the defendant/ employer are not unreasonable within the meaning of KRS 342.310, as the defendant/ employer was able to rely upon the medical opinion of Dr. Russell Travis. Regardless of what any fact finder may find about the credibility of Dr. Travis’ opinion, the defendant/ employer is entitled to rely upon that opinion in prosecuting any action in this claim.
The Administrative Law Judge finds that the plaintiff is entitled to reimbursement for mileage expenses as the Administrative Law Judge has found medical treatment of the plaintiff to be reasonable and necessary.
Miller filed a petition for reconsideration arguing the burden of proof was on the defendant/employer to show the treatment was not reasonable or necessary. Miller further argued Benco failed to properly raise the issue of the compensability of Mobic as a contested issue. He argued the pleadings were never amended to specifically contest the prescription Mobic. By order dated August 20, 2008, ALJ Justice denied the petition.
On appeal, Miller argues the ALJ committed reversible error by finding Miller had the burden of proof. Miller notes Kentucky law is clear that the burden of proof post award is on the defendant/employer to prove challenged medical expenses are unreasonable or unnecessary. Next, Miller argues the medical fee dispute was defective. Miller notes the defendant/employer initially challenged treatment with Spine & Brain. He contends that, in order to resolve the medical fee dispute, he agreed to designate Dr. Karelis as his treating physician and the employer agreed. Miller argues the defendant/employer only added Dr. Karelis as a party, but failed to state specifically the reason why Dr. Karelis was joined or that any additional issues were raised by that pleading. Miller notes Benco failed to attach any medical bills or “procedures” as required by the regulations. Finally, Miller argues he is entitled to attorneys fees under KRS 342.310. He argues the original medical fee dispute was resolved by agreement that he would switch from Spine & Brain to Dr. Karelis. He contends this agreement and understanding was confirmed by correspondence by and between the attorneys. He argues Benco’s attempt to immediately challenge Dr. Karelis’ treatment without specifically amending its pleadings amounts to bad faith and was an unreasonable attempt to abuse the system with the only goal of reducing the cost to Benco. He argues the evidence supports a finding the medical fee dispute was brought without reasonable grounds, supporting an award of sanctions against the employer and attorney fees pursuant to KRS 342.310.
We begin by addressing Miller’s argument the medical fee dispute was defective. We note that from the outset, Benco challenged the frequency of office visits. After Miller switched his treatment to Dr. Karelis, Benco promptly moved to add Dr. Karelis as a party and it was clear from the report of Dr. Riggs attached to the motion Benco continued to challenge the frequency of office visits. At the BRC held January 29, 2008, the only contested issues listed were compensability of monthly office visits with Dr. Karelis and compensability of Zanaflex and Mobic. On the BRC Order & Memorandum, the ALJ overruled Miller’s objection and motion to strike which had argued there was an agreement that Miller could continue to treat with the new designated physician and receive medication. Clearly, Miller was aware of the contested issues at that point and the BRC Order & Memorandum allowed amendment of the original medical fee dispute and preserved the contested issues listed therein.
In a post award medical fee dispute, the employer bears the burden of proving the contested medical expenses are unreasonable or unnecessary while the claimant bears the burden of proving the work-relatedness of the contested expense. See KRS 342.020; National Pizza Company vs. Curry, 802 S.W.2d 949 (Ky. App. 1991); Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979); Addington Resources, Inc. v. Perkins, 947 S.W.2d 421 (Ky. App. 1997); Mitee Enterprises vs. Yates, 865 S.W.2d 654 (Ky. 1993).
As the fact finder, the ALJ has the sole authority to determine the quality, character, and substance of the evidence. Square D Company v. Tipton, 862 S.W.2d 308 (Ky. 1993); Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). Similarly, the ALJ alone has the authority to determine the weight and inferences to be drawn from the evidence. Luttrell v. Cardinal Aluminum Co., 909 S.W.2d 334 (Ky. App. 1995). Where the evidence is conflicting, the ALJ may choose whom or what to believe. Pruitt v. Bugg Brothers, Ky., 547 S.W.2d 123 (1977). The ALJ, as fact finder, may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same adversary party’s total proof. Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000); Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).
Here, the ALJ found Benco not responsible for payment of medical expenses related to the prescription Mobic first, because he determined he could not find from the evidence Mobic was related to the work-related condition and secondly, he was unconvinced from the evidence Mobic was necessary for the work-related injury. We view the ALJ’s statement that the plaintiff has the burden of proof and risk of non-persuasion to convince the trier of fact of each and every element of his claim as relating to the first finding that Mobic was not related to the work-related condition. Miller cites to no evidence of record indicating the prescription for Mobic was related to the work-related injury. Mobic was first prescribed by Dr. Karelis, but his records do not state why he was prescribing the drug. Dr. Travis recorded a history from Miller that he had arthritis in his hands and wrists. He also noted Miller had reconstructive surgery on his fingers in his left hand in 1992 after catching them in a roof bolter. These conditions are not a part of the work-related injury that is the subject of the medical fee dispute. The ALJ could reasonably conclude Miller failed to establish the prescription for Mobic was related to the work-related injury.
The report of Dr. Riggs is substantial evidence that would support a conclusion the prescription for Mobic is not reasonable or necessary for treatment of the work-related injury. Since there is substantial evidence to support the ALJ’s finding Mobic is not necessary for the work-related injury, Miller cannot show the record compels a finding in his favor on the issue of reasonableness and necessity.
With regard to the issue of sanctions, this Board has consistently utilized the standard set forth by the Kentucky Supreme Court in Roberts v. Estep, 845 S.W.2d 544 (Ky. 1993). That standard is whether it is readily conceivable a party was acting in good faith when bringing or defending the action. As the ALJ pointed out, Benco could rely upon the medical opinion of Dr. Travis. Dr. Travis opined monthly or quarterly office visits just for prescriptions was not appropriate or indicated. Further, Dr. Gill stated continued office visits every three months were not medically necessary. Finally, Dr. Riggs indicated the monthly visits with Dr. Karelis were not necessary. There was ample evidence to support a good faith basis to contest the frequency of office visits. Most importantly, Benco prevailed upon one issue, the compensability of Mobic. There was ample medical evidence upon which the ALJ could conclude Benco was not acting in bad faith.
The correspondence regarding any “agreement” does not establish a basis for a bad faith claim. A March 16, 2007 letter from Benco’s counsel only indicates an agreement to allow Miller to designate a new Form 113 physician as he had been discharged from Spine & Brain. It also indicated Miller agreed to allow a file review so Benco could make a settlement offer. Counsel asked for a copy of Miller’s social security disability information as well as a copy of his Medicare card. Clearly, this letter did not contain a complete settlement, but rather only the promise of a review with the potential of a future settlement offer. The response by counsel for Miller on March 23, 2007 merely indicated the new designation had been completed and asked that it be forwarded to the insurance company. Clearly, this correspondence did not constitute an acceptance of any settlement agreement related to the entirety of the claim. There was no meeting of the minds and no documentation sufficient to conclude the parties had settled the medical fee dispute through the designation of the new physician.
Accordingly, the opinion, award and order of Hon. John W. Thacker, and the order on petition for reconsideration of Hon. Joseph W. Justice, Administrative Law Judge, are hereby AFFIRMED.
ALL CONCUR.
COUNSEL FOR PETITIONER
HON THOMAS MOAK
PO BOX 510
PRESTONSBURG KY 41653
COUNSEL FOR RESPONDENT
HON BARRY LEWIS
PO BOX 800
HAZARD KY 41702-0800
ADMINISTRATIVE LAW JUDGE
HON JOSEPH JUSTICE
107 COAL HOLLOW ROAD
PIKEVILLE KY 41501
