*/
Workers’
Compensation Board
OPINION
ENTERED: November 4, 2016
CLAIM NO. 201362697
HENRY COUNTY BOARD OF EDUCATION PETITIONER
VS. APPEAL FROM HON. JONATHAN
R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE
SUSAN SUTHERLAND
DR. DAMON GATEWOOD
and HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member. Henry
County Board of Education ("Henry County") appeals from the June 27,
2016, Medical Fee Opinion and Order of Hon. Jonathan R. Weatherby,
Administrative Law Judge ("ALJ") in which the ALJ resolved the
medical fee dispute in favor of Susan Sutherland (“Sutherland”). No petition
for reconsideration was filed. On appeal, Henry County asserts the ALJ’s
decision is erroneous as the disputed medical treatment is neither reasonable
nor necessary treatment of the work-related injury.
The Form 101 alleges Sutherland
sustained injuries to her right hip/leg, low back, and coccyx on October 23,
2013, in the following manner: "I was working on [sic] field trip at [sic]
dairy farm on [sic] hay wagon when [sic] board broke and I injured my right
hip/leg, low back and coccyx."
On December 7, 2015, Hon. R. Roland
Case, Administrative Law Judge, approved a settlement agreement setting forth
the following diagnoses: "Traumatic injuries to right hip, right leg, low
back, and coccyx." Under "Settlement Computation" is the following:
This
is a compromise settlement of a dispute claim. The parties understand and agree
that there are significant issues with respect to the correct functional
impairment rating, applicability of the KRS 342.730(1)(c) factors, the
Defendant's right to share in any recovery pursuant to KRS 342.730(1)(c)
factors, the Defendant's right to share in any recovery pursuant to KRS
342.700, and the Plaintiff's right to Vocational Rehabilitation benefits. The
parties have agreed to resolve these issues on the basis of a single lump sum
payment of $12,500.00 which will be paid on the terms and conditions set out
below.
The
parties agree that $7,500.00 of this $12,500.00 lump sum settlement represents
consideration for the Plaintiff's waiver of her right to any additional income
benefits, including Temporary Total, Permanent Partial, or Permanent Total
Disability benefits, past and future, including interest, that $1,000.00
represents consideration for the Plaintiff's waiver of her right to Vocational
Rehabilitation benefits, and that $4,000.00 represents consideration for
Plaintiff's waiver of her right to reopen this claim in the future for any
additional income or Vocational Rehabilitation benefits.
The
Defendant agrees to remain responsible for payment of all reasonable, necessary
and related medical expenses, pursuant to the provisions of KRS 342.020, the
Kentucky Administrative Regulations, and the Kentucky Medical Fee Schedule.
The
Defendant, Henry County Board of Education, and its Workers' Compensation
Insurance carriers, Seneca Insurance Company, (USC/TPA) agree to assign their
KRS 342.700 rights to the Plaintiff's as part of this settlement.
On December 14, 2015, Henry County
filed a Form 112 Medical Dispute in which the nature of the dispute is
described as follows:
Ms.
Sutherland's work injuries have been accepted as compensable, and the Medical
Payment Obligor for the Defendant has paid all reasonable, necessary, and
related medical expenses. Recently, a controversy arose with respect to the
reasonableness and necessity of prescriptions for Lidocaine and Oxycodone which
are being prescribed by Dr. Damon Gatewood.
A
Representative of the Medical Payment Obligor for the Defendant forwarded Ms.
Sutherland's medical records to Dr. Bart Olash for Utilization Review, and
requested that he express an opinion with respect to whether he believes that
the continuing prescriptions for Lidocaine and Oxycodone are medically
necessary or appropriate for the work injury of October 23, 2013.
In
a Utilization Review Report dated November 17, 2015, Dr. Olash gave his opinion
that he did 'not feel Lidocaine and Oxycodone/APAP are medically necessary or
appropriate at this time for the work injury of 10/23/2013. All active effects
of this work injury have long since resolved'. A copy of the Utilization
Review-Notice of Denial of November 17, 2015 is attached hereto, and marked as
Defendant's Exhibit A.
Attached
to this Medical Dispute, and marked as Defendant's Exhibit B, is a group of prescription receipts showing the
continuing payments the Medical Payment Obligor has made for the prescription
medications.
The
specific relief request is that the Administrative Law Judge determine that the
active effects of the Plaintiff's injuries of October 23, 2013 have resolved,
and that she is no longer in need of prescription narcotic medications or
Lidocaine Pads.
Attached to Henry County’s Medical Fee
Dispute is the November 18, 2015, "Utilization Review Notice of Denial"
Dr. Bart Olash in which he opines as follows:
This
patient did sustain a work injury on 10/23/2013. Based on the information in
the chart, the work injury resulted in contusion/strain to the low back and
right hip region. There are no objective findings to suggest the work injury
resulted in more significant pathology. I cannot explain the patient's
persistent symptomatology. Now, she has low back pain and bilateral leg pain.
I
do not feel lidocaine [sic] and oxycodone/APAP [sic] are medically necessary or
appropriate at this time for the work injury of 10/23/2013. All active effects
of this work injury have long since resolved.
The February 9, 2016, "Scheduling
Order Following Initial Conference On Medical Dispute Reopening" notes the
reasonableness and necessity of Lidocaine and Oxycodone are being challenged.
Also, filed in the record by Henry
County is the February 17, 2016, Independent Medical Examination
("IME") of Dr. Ellen Ballard. After performing a physical examination
and reviewing medical records, Dr. Ballard answered questions in the following
manner:
1. What is your current diagnosis/diagnoses? She may have initially had a contusion;
this resolved.
2. Dr. Damon Gatewood is prescribing
Oxycodone and Lidocaine Pads for Ms. Sutherland. Do you believe that those
medications are reasonable and necessary for treatment of Ms. Sutherland's
current physical problems? She does not
require any medication or treatment for her current physical problems.
3. If you do not believe that those
medications are reasonable and necessary, what do you suggest would be an
appropriate treatment plan? I would not recommend
any treatment other than an active exercise program. (emphasis added).
The March 9, 2016, report of Dr. Damon
Gatewood states as follows:
Ms. Sutherland is a [sic] much [sic] care for
ongoing back pain with sciatica from an injury sustained at work when she fell
through a wagon in 2013. She has ongoing pain that is treated with her
oxycodone and Lidoderm patches, which do give her considerable relief. In my
opinion she would benefit from further physical therapy and possibly other
modalities to give her improvement in her function and pain control. This has
been impeded repeatedly by her worker's comp provider.
In the June 27, 2016, Medical Fee
Opinion and Order, the ALJ set forth the following Findings of Fact &
Conclusions of Law:
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).
The
Defendant Employer has moved to reopen this claim to challenge the work
relatedness, reasonableness and necessity of Lidocaine and Oxycodone. After
review of the evidence, it is determined that the opinion of Dr. Gatewood is
persuasive in that current treatment including the use of Oxycodone and
Lidoderm patches provides [sic] great relief to the Plaintiff's work related
condition and is [sic] therefore reasonable, necessary, and causally related to
the work injury. Therefore, the contested medications are found to be
compensable.
On appeal, Henry County asserts, in
part, as follows:
The answers to the foregoing questions in this case all favor
that the disputed treatment is not reasonable and necessary and the employer
should not have to pay for it. If a treating physician can defeat a medical fee
dispute just by saying 'I think the treatment helps,' there is no point to the
process established by the statute for making sure medical treatment dollars
are well-spent, for the benefit of the injured worker. The evidence compels
that the present medical fee dispute be resolved in the employer's favor, and
the Board should reverse the ALJ's opinion and order.
We affirm.
In a post-award medical fee dispute,
the burden of proof and risk of non-persuasion falls, in full, on the party who has filed the medical fee dispute. In the
case sub judice, since Henry County
filed the post-award medical fee dispute, it is charged with proving the
contested treatment is not reasonable and necessary. See National Pizza Company vs. Curry, 802 S.W.2d 949 (
Since Henry County was unsuccessful in
its burden of proving the contested medical treatment is neither reasonable,
necessary, nor work-related, 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).
In rendering a decision, KRS 342.285
grants an ALJ as fact-finder the sole discretion to determine the quality,
character, and substance of evidence. Square D Co. v.
Tipton, 862 S.W.2d 308 (Ky. 1993). An ALJ may draw reasonable
inferences from the evidence, 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.
Jackson v. General
Refractories Co., 581 S.W.2d 10 (Ky. 1979); Caudill v. Maloney’s Discount Stores,
560 S.W.2d 15 (Ky. 1977). An ALJ 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). In
that regard, an ALJ is vested with broad authority to decide questions
involving causation. Dravo Lime Co.
v. Eakins, 156 S.W.3d 283 (Ky. 2003).
Although a party may note evidence that would have supported a different
outcome than that reached by an ALJ, such proof is not an adequate basis to
reverse on appeal. McCloud v. Beth-Elkhorn Corp.,
514 S.W.2d 46 (Ky. 1974). Rather, it must be
shown there was no evidence of substantial probative value to support the
decision. Special Fund v. Francis,
708 S.W.2d 641 (Ky. 1986).
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). Thus, our task on appeal is to determine whether substantial
evidence supports the ALJ’s decision.
Henry County's Medical Fee Dispute
contests only the reasonableness and necessity of Lidoderm patches and
Oxycodone. It has not contested, nor has
it introduced medical proof addressing the work-relatedness of this medication.
The burden of proof in this Medical Fee Dispute, filed by Henry County, lies exclusively
with Henry County. Therefore, Henry County was required to prove the contested
medication is neither reasonable nor necessary. Sutherland was only required to
set forth enough proof rebutting Henry County's proof.
The ALJ relied upon the March 9, 2016,
report of Dr. Gatewood to determine the contested medications are reasonable,
necessary, and work-related. Admittedly, Dr. Gatewood's report, indicating
Oxycodone and Lidoderm patches give Sutherland "considerable relief,"
is scant. However, the ALJ has the discretion to deem Dr. Gatewood's report as
sufficient rebuttal to Henry County's medical proof. This is particularly true
since Henry County's medical proof, in the form of opinions by Drs. Olash and
Ballard, fails to address the lack of work-relatedness of the contested
medications. While we acknowledge the ALJ misstated Henry County's Medical Fee
Dispute as "challenging the work relatedness,
reasonableness and necessity of Lidocaine & Oxycodone," and we
acknowledge the ALJ failed to note Henry County's medical evidence did not address
the lack of work-relatedness of the contested medication, we find these
omissions to be harmless error. (emphasis added). This is particularly true in
light of the fact that no petition for reconsideration was filed by Henry
County seeking clarification, further explanation, or additional findings of
fact. Since substantial evidence, in the form of Dr. Gatewood’s March 9, 2016,
report, supports the ALJ’s decision, we are without authority to disturb his
decision on appeal. Special Fund v. Francis, supra.
Accordingly, the ALJ's determination
that Lidocaine patches and Oxycodone are work-related, reasonable, and
necessary in the June 27, 2016, Medical Fee Opinion and Order is AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON TIMOTHY J WALKER
300 E MAIN ST STE 400
LEXINGTON KY 40507
COUNSEL
FOR RESPONDENT:
HON WAYNE C DAUB
600 W MAIN ST STE 300
LOUISVILLE KY 40202
RESPONDENT:
DR DAMON GATEWOOD
58 CITATION LANE
CAMPBELLSBURG KY 40011
ADMINISTRATIVE
LAW JUDGE:
HON JONATHAN R WEATHERBY
657 CHAMBERLIN AVE
FRANKFORT KY 40601
