Workers’
Compensation Board
OPINION
ENTERED: July 15, 2016
CLAIM NO. 199874200
STANLEY METHERD PETITIONER
VS. APPEAL FROM HON. JANE
RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE
COPAR INC.
DR. MICHAEL L. HACK
and HON. JANE RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Stanley Metherd (“Metherd”) appeals from the
April 7, 2016, Medical Fee Opinion and Order of Hon. Jane Rice Williams,
Administrative Law Judge ("ALJ"). In the April 7, 2016, Opinion and
Order, the ALJ resolved Copar Inc.'s (“Copar”) Medical Fee Dispute by
concluding only OxyContin "at its lowest dose" is compensable. On
appeal, Metherd asserts the ALJ's resolution of the Medical Fee Dispute is
erroneous and not supported by substantial evidence. No petition for
reconsideration was filed.
The Form 101 asserts Metherd sustained
injuries in the scope and course of his employment on June 29, 1998, in the
following manner: "I lifted a radiator weighing 30-40 lbs. and felt my
back pop and I had pain in my back and down my left leg."
The August 3, 1999, Award and Order of
Kevin King, Chief Arbitrator, reflects Metherd was awarded temporary total
disability benefits, permanent partial disability benefits, and medical benefits.
On May 25, 2011, Copar filed a Motion
to Reopen and Form 112 Medical Fee Dispute contesting the reasonableness and
necessity of Clonazepam and Amitiza. By order dated June 8, 2011, former Chief
Administrative Law Judge, Hon. J. Landon Overfield, resolved the medical fee
dispute in favor of Copar.
On October 5, 2015, Copar filed a
Motion to Reopen and Form 112 Medical Fee Dispute contesting the reasonableness
and necessity of Gabapentin, Baclofen, Oxycodone, OxyContin, Escitalopram, and
Tizanidine.[1]
Attached to the Form 112 is the September 2, 2015, Utilization Review Notice of
Denial of Dr. Albert Olash who stated as follows:
First, I will address the oxycodone [sic] and
OxyContin. Based on Dr. Metherd's [sic] response, he is basing this patient's
need for these high dose narcotics solely on the patient's subjective response.
There is no documentation that he is basing this on objective evidence on
physical exam. There is no documentation that he is basing his treatment on
objective diagnostic studies. There is no documentation that he is taking into
consideration the description of this man's injury, the objective findings
since the injury, and the time that has elapsed since the injury. Instead, his
entire treatment seems to be based on subjective response [sic] from the
patient. Also, it is noted that his objective abnormality is gleaned from a
physical therapist note stating that this man has active evidence of 'pain and
limitations.' I do not agree that this is appropriate. Certainly, this man is
going to want to stay on narcotics for the rest of his life. He is certainly addicted
to the medication at this time. Sometimes, what is best for the patient, the
patient does not always agree with. The patient is not trained in medicine and
will not understand how many deaths occur every year due to narcotic overdose
from prescription medications. The physician, however, is responsible and needs
to take these into consideration when he treats these patients. In this
particular case, I see no reason for continuing this man on high dose
narcotics. The patient should be informed that, at this point in time, he is
dependent on the medication not because of pain but because he has been on the
medication so long. Certainly, stopping the short-acting oxycodone [sic] will
not cause significant withdrawal. The OxyContin then can be slowly tapered. The
goal is to get this man completely off the OxyContin, but if not possible, at
least get him to the lowest possible dose.
The records still do not document any
radiculopathy. There is no reason to keep this man on gabapentin [sic].
Gabapentin can cause balance problems. It is just another medication that
decreases his sensorium. He has been on this medication so long that it needs
to be tapered off to decrease the likelihood of seizures.
There is no reason for this man to be on two
muscle relaxers. Stopping the tizanidine [sic] should not be a problem.
Recommendations:
1. After review of the medical records,
including the response by Dr. Michael Hack, it is still my opinion that
gabapentin [sic], tizanidine [sic], baclofen [sic], oxycodone [sic], and
OxyContin are related to the work injury of June 29, 1998. It is my opinion
that Lexapro as an antidepressant medication, is not related to the work injury
of June 29, 1998.
2. After review of the medical records, it is
still my opinion that this man should not be on oxycodone [sic] and OxyContin.
The oxycodone [sic] can be stopped immediately. The OxyContin should be tapered
over time to the lowest effective dose. Hopefully, he can be taken off the
medication altogether in time. It is my opinion that gabapentin [sic] is not
medically necessary and appropriate because there is no objective documentation
of radiculopathy. This medication should be tapered off, because if it is
stopped abruptly, he could experience rebound seizures. There is no reason for
this man to be on two muscle relaxers. Tizanidine can be stopped immediately.
He could be maintained on baclofen [sic]. Lexapro (escitalopram) [sic] is not
medically necessary and appropriate for treatment of the work injury as
depression is not an accepted diagnosis under this claim.
3. After review of the medical records, it is
my opinion that the current dose of gabapentin [sic] is not appropriate. This
man should not be on gabapentin [sic] at all. This medication should be tapered
off.
4. After review of the medical records, it is
my opinion that both tizanidine [sic] and baclofen [sic] are not medically
necessary and appropriate. Tizanidine should be stopped. Baclofen can be
continued as a muscle relaxer for treatment of the work injury.
5. It is my opinion that this man does not
need to be on oxycodone [sic] and OxyContin. This man had a strain/sprain of
his back 17 years ago. This brought his degenerative disk disease of his spine
into disabling reality. High dose narcotics are not medically necessary and
appropriate for degenerative disk disease of the lower spine. High dose
narcotics are medically necessary and appropriate for acute injury such as
broken bones or in the postsurgical setting. It is also not medically necessary
and appropriate for treating chronic cancer pain. It is not medically necessary
and appropriate for treating degenerative disk disease of the spine. Certainly,
the short-acting oxycodone [sic] can be stopped immediately. The OxyContin
should be tapered off over time.
6. It is my opinion that this man is on an
excessive dose of opioids. The oxycodone [sic] is not medically necessary and
appropriate and it should be stopped. The OxyContin should be tapered over
time.
In the April 7, 2016, Medical Fee
Opinion and Order, the ALJ set forth the following Findings of Fact and
Conclusions of Law:
A
telephonic Benefit Review Conference was held on January 12, 2016. The Formal Hearing was held on March 9, 2016
and the matter was submitted on the record for a decision as of March 9, 2016.
Metherd is 66 years
old. He appeared at the Formal Hearing on March 9, 2016. He entered and exited the room with the use
of a rollator, a cane type device with a wheel on the end. He has a trach and an oxygen tank. According to the medical records, he has a
laryngeal voice box as a result of throat cancer in approximately 2004. He treated in pain management with Emily
Rayes-Prince, M.D., following his 1998 work injury until she closed her practice
and left the area in 2012. He then began
treating with Dr. Hack.
Metherd
describes his low back pain as sharp and searing. Since his injury, low back
pain has persisted with radiculopathy down the left leg initially. Now it goes down both legs. He cannot walk farther than 80 feet, stand
longer than 10 minutes or sit longer than 15–20 minutes. He can lift no more
than a gallon of milk or his 10 pound oxygen tank. He has tried epidural
steroid and trigger point injections with no success. He believes he would be
bedfast without his medication. He testified regarding the dosages of each.
Regarding the Escitalopram, he began taking it approximately two months after
his injury. He did not suffer depression until the work injury occurred and he
was no longer able to work and could not pay his bills.
Defendant
Employer introduced the September 2, 2015 report of Albert Olash, M.D., who
reviewed records and noted the mechanism of injury as an incident where Metherd
was lifting 30–40 pounds when he felt a pop in his back. He has had pain since
that time. Dr. Olash discussed dangers
and risks involved with opioid use and had recommended that Dr. Hack
discontinue OxyContin. He also noted the Dr. Hack’s medication recommendations
were based on subjective complaints. Dr. Hack disagreed with Dr. Olash stating
Plaintiff was stable on the current medications. Dr. Hack agreed to switch to
either Baclofen or Tizanidine but, after a trial period, he found both taken
together were more effective than taking only one. Dr. Olash recommended
discontinuing Gabapentin, as there was no documented neuropathic pain. Dr. Hack
disagreed. Dr. Hack did agree to try and taper opioid use although he
questioned this suggestion and found the opioids had provided stability for
years. Dr. Olash found Oxycodone should be stopped immediately and OxyContin
should be tapered to the lowest effective dose. He did not need two muscle
relaxers. Tizanidine could be stopped immediately and Baclofen could continue.
Lexapro (escitalopram) [sic] was not reasonable and necessary for treatment of
the work injury, as depression was not a diagnosis related to the back injury.
Gabapentin should be tapered. High dose narcotics are medically necessary for
treating acute injuries such as broken bones or for treating chronic cancer
patients, but were not appropriate for treating degenerative disc disease.
Oxycodone should be stopped and OxyContin tapered over time.
Plaintiff
introduced treatment notes from Dr. Rayes-Prince beginning January 14, 2011 and
extending through 2012. Metherd had been
treating with Dr. Hack, his primary care physician. Dr. Rayes-Prince found the medication regimen
appropriate for the work injury which included Neurontin, Oxycontin, Lexapro,
Klonopin, and Percocet. He was also taking a host of additional medications for
other problems including Doxycycline, Atenolol, Synthroid, Plavix, Pravastatin,
Nitroglycerine, Sucralfate, Cytotec, and Lisinopril, potassium chloride,
Metformin, Vitamin D and oxygen. He was
treating for type II diabetes, hypertension, vascular disease and COPD. He had his larynx removed followed with
radiation.
Plaintiff
introduced treatment notes of Dr. Hack along with a letter dated November 19,
2015 stating he had treated Metherd for years related to his work injury. His
treatment plan had been established by the pain clinic physicians. At least
once, Dr. Hack had attempted to taper the medications. He saw no need for attempted physical therapy
as Plaintiff reported having attempted all therapies and treatments available
to no avail. Dr. Hack found the depression due to the work injury – limited
mobility, chronic pain and his predicament. Neurontin treated his radicular
pain and worked with narcotic medications.
Dr.
Hack testified by deposition on March 3, 2016. He is a family practice
physician and began treating Metherd in 2003. He sees him quarterly for
prescribed medications. He does not do a pill count and he does no regular
urine drug screens. He acknowledged there has been no increase in Metherd's
activity level or decrease in his pain complaints. He has made two attempts, 2010 and 2015, to
reduce the pain medications but was not successful. He acknowledged there are
no physical findings of muscle spasms or reflex abnormalities and methods of
treatment are based on Metherd's ongoing complaints of pain. He also discussed
the various conditions for which Metherd suffers including morbid obesity,
degenerative disk disease, possible spina bifida, laryngeal cancer, COPD and
diabetes. However, Dr. Hack attributes Metherd's difficulty ambulating to his
back and hip pain.
In
a post-judgment Motion to Reopen to Assert a Medical Fee Dispute, Defendant
Employer has the burden of proving that the contested medical expenses and/or
proposed medical procedure is unreasonable or unnecessary, while the Plaintiff
maintains the burden of proving that the contested medical expenses and/or
proposed medical procedure is causally related treatment for the effects of the
work-related injury. Mitee Enterprises
vs. Yates, 865 SW2d 654 (KY 1993) Square
D Company vs. Tipton, 862 SW2d 308 (KY 1993) Addington Resources, Inc. vs. Perkins, 947 SW2d 42 (KY App. 1997).
In addition, the legislature’s use of the conjunctive "and" which
appears in subsection 1 of KRS 342.020 "cure and relief" was intended
to be construed as "cure and/or relief". National
Pizza Company vs. Curry, 802 SW2d 949 (KY 1991).
In
the dispute herein, Defendant Employer has challenged the reasonableness and
necessity of prescriptions for Oxycontin [sic] (anything more than the minimum
dose), Oxycodone, Gabapentin, Tizanidine, and Escitalopram. After careful
review of the contrasting medical opinions including strong consideration of
the opinions from the treating physician, there is no convincing explanation of
a connection between the medications contested and the work injury. Metherd has many problems including morbid
obesity, degenerative disk disease, possible spina bifida, laryngeal cancer,
COPD and diabetes. The record simply does not support the finding that in spite
of all these problems the contested medications are medically reasonable for
treatment of an 18 year old non-surgical (arguably strain type) injury. Dr. Hack appears to have taken this man as he
found him and continued under the theory of the work injury without a strong
objective opinion. The report of Dr.
Olash is persuasive that the contested medications are not reasonable and
necessary for the cure and/or relief of the effects of the work injury and,
therefore, non-compensable. It may be the case that the continuation of these
contested medications are reasonable and necessary for treatment of the
numerous other problems, but not for the 1998 work injury.
In a post-award medical
fee dispute, the burden of proof and risk of
non-persuasion with respect to the reasonableness and necessity of
medical treatment falls on the employer.
National Pizza Company vs. Curry, 802 S.W.2d 949 (Ky. App.
1991). However, the burden
remains with the claimant concerning questions of
work-relatedness or causation of the condition. Id; see also Addington Resources, Inc.
vs. Perkins, 947 S.W.2d 421 (Ky. App. 1997). There is no question the issue
was the reasonableness and necessity of the contested medication; thus, Copar
had the burden of proof.
Because Copar, the party with the
burden of proof, was successful before the ALJ, the issue on appeal is whether
the ALJ’s decision is supported by substantial evidence. Snawder v. Stice,
576 S.W.2d 276 (Ky. App. 1979), Wolf Creek Collieries v. Crum, 673
S.W.2d 735 (Ky. App. 1984). “Substantial
evidence” is defined as evidence of relevant consequence having the fitness to
induce conviction in the minds of reasonable persons. Smyzer v. B. F. Goodrich Chemical Co.,
474 S.W.2d 367 (Ky. 1971). It has been likened to evidence that would survive a
defendant's motion for a directed verdict. Kentucky Utilities Co. v. Hammons, 145 S.W. 2d 67, 71 (Ky.
1940).
As fact-finder, the ALJ has the sole
authority to determine the quality, character and substance of the
evidence. Square D Company v. Tipton,
supra. Similarly, the ALJ has the
sole authority to judge the weight to be accorded the evidence and the
inferences to be drawn therefrom. Miller
v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997); Luttrell
v. Cardinal Aluminum Co., 909 S.W.2d 334 (Ky. App. 1995). The 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 parties’ total proof. Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky.
2000); Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999); Halls
Hardwood Floor Co. v. Stapleton, 16 S.W.3d 327 (Ky. App. 2000).
Furthermore, in the
absence of a petition for reconsideration, on questions of fact, the Board is
limited to a determination of whether there is substantial evidence contained
in the record to support the ALJ’s conclusion.
Stated otherwise, inadequate, incomplete, or even inaccurate
fact-finding on the part of an ALJ will not justify reversal or remand if there
is substantial evidence in the record that supports the ultimate
conclusion. Eaton Axle Corp. v. Nally,
688 S.W.2d 334 (Ky. 1985); Halls Hardwood Floor Co. v. Stapleton, supra. As no petition for reconsideration was filed,
our sole task on appeal is narrowed to a determination of whether the ALJ’s
resolution of Copar's Medical Fee Dispute is supported by substantial
evidence.
The ALJ relied upon the opinions of Dr. Olash as set forth
in the September 2, 2015, report. While there is medical evidence in the record
that is contrary to the opinions of Dr. Olash, the ALJ has the discretion to
pick and choose amongst the medical evidence in the record. If “the physicians in a case genuinely express
medically sound, but differing opinions as to the severity
of a claimant's injury, the ALJ has the discretion to
choose which physician's opinion to believe.” Jones v.
Brasch-Barry General Contractors, 189 S.W.3d 149, 153 (Ky. App. 2006). Where evidence is conflicting, the ALJ, as fact-finder, has the
discretion to pick and choose whom and what to believe. Caudill v. Maloney’s Discount
Stores,
560 S.W.2d 15 (Ky. 1977).
The
ALJ choose to rely upon the opinions of Dr. Olash in resolving the medical fee
dispute in favor of Copar, and those opinions constitute substantial evidence.
We note that the ALJ's determination that "OxyContin at its lowest dose is
found compensable" is consistent with Dr. Olash's opinion: "The
OxyContin should be tapered over time to the lowest effective dose. Hopefully,
he can be taken off the medication altogether in time."
Accordingly,
the
April 7, 2016, Medical Fee Opinion and Order is AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON RONALD K BRUCE
P O BOX 682
MADISONVILLE KY 42431
COUNSEL
FOR RESPONDENT:
HON BONNIE HOSKINS
P O BOX 24564
LEXINGTON KY 40524
RESPONDENT:
DR MICHAEL L HACK
225 INDUSTRIAL PARK RD
DAWSON SPRINGS KY 42408
ADMINISTRATIVE
LAW JUDGE:
HON JANE RICE WILLIAMS
217 S MAIN ST STE 10
LONDON KY 40741
[1] At the March 9, 2016, hearing, Copar
withdrew Baclofen from the contested medical treatment and modified its
challenge regarding OxyContin to contesting anything more than the lowest
possible dose.