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Workers’
Compensation Board
OPINION ENTERED: January 6, 2017
CLAIM NO. 200598138
STEVE KAREKEN PETITIONER
VS. APPEAL FROM HON. JANE RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE
MH LOGISTICS;
DR STEPHEN C PAYNE;
DR KYAW HTIN;
HON. JANE RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Steve Kareken
(“Kareken”) appeals from the July 28, 2016 Medical
Dispute Opinion and Order rendered by Hon. Jane Rice Williams, Administrative
Law Judge (“ALJ”), finding M.H. Logistics (“M.H.”) is not responsible for
treatment with Dr. Kyan Htin
and prescriptions for Hydrocodone and Gabapentin. On appeal, Kareken
argues the ALJ applied an incorrect burden of proof and failed to state the
evidentiary basis for her findings, and that the decision is not supported by
substantial evidence. For the reasons
set forth herein, we affirm.
Kareken was injured on May 3,
2004, when he slipped and fell, resulting in broken hardware from a previous
lumbar fusion. He underwent a repeat
lumbar fusion for non-union at L4-5 and replacement of broken hardware on
December 6, 2004, and a posterior fusion at L3-S1 with hardware revision on
July 5, 2006. His claim was resolved by
settlement agreement approved June 10, 2008.
Kareken received an annuity and medical
benefits remained open.
On December 28, 2015, M.H. filed a Form 112 and motion to reopen
to contest the work-relatedness, reasonableness and necessity of treatment with
Dr. Htin and prescriptions for Hydrocodone,
Gabapentin, Diclofenac and Methocarbamol.
It submitted the October 21, 2015 report of Dr. William Baumgartl, who conducted a medical records review. He opined Hydrocodone is not medically
necessary, as there is no documentation to indicate functional improvement or
proper procedures required for prescribing opioid medication. He further opined Gabapentin is not medically
reasonable as there is no indication of neuropathic pain. Dr. Baumgartl
attached to his report a portion of the Official Disability Guidelines
(“ODG”), a publication of the Work Loss Data Institute, concerning chronic
pain. The guidelines require ongoing
review and documentation of pain relief, functional status, appropriate
medication use, and side effects. The
ODG recommends, “consideration of a consultation with
a multidisciplinary pain clinic if doses of opioids are required beyond what is
usually required for the condition or pain does not improve on opioids in 3
months.”
M.H. also submitted the report of Dr.
Ellen M. Ballard, who performed an independent medical evaluation on March 22,
2016. Her impressions were history of
lumbar surgery with multiple work compensation injuries; history of right
shoulder surgery times two and left shoulder surgery with headaches following
2014 motor vehicle accident; and history of three lumbar surgeries with work
injuries prior to 2004 injury with likely prior permanent restrictions. She felt Kareken’s
current treatment is reasonable and necessary, but did not feel the current
pain treatment is related to the 2004 work injury. Instead, she related the treatment to
multiple pre-existing back problems, a 2014 motor vehicle accident, and
shoulder surgeries. Dr. Ballard
indicated Kareken could be weaned from Lortab, but
there did not appear to be a good reason for him to stop his other
medications.
Kareken
filed an April 4, 2016 letter from Dr. Stephen Payne stating prescriptions for Robaxin, Diclofenac, and Gabapentin are clearly related to
the 2004 injury.
Kareken also
filed medical records from Dr. Richard T. Holt.
Dr. Holt treated Kareken annually for back,
right leg, right groin and testicle pain.
In a February 2, 2011 letter, Dr. Holt stated Kareken
has arachnoiditis which is the reason for his
continued and probable lifelong need for medications. On February 1, 2007, Kareken
was noted to have a solid fusion, but he continued to have low back pain and
his right leg gives out. Dr. Holt
diagnosed low back pain, failed fusion.
In February, 2007, Dr. Holt stated he would cease treating Kareken because the insurance company “is giving me a hard
time.”
Kareken
filed a February 22, 2016 letter from Dr. Htin, who
provided pain management treatment. Dr. Htin noted Kareken had undergone
two low back surgeries subsequent to the 2004 work injury. He has been stable on Norco for pain
control. Dr. Htin
opined the medication would be needed for the rest of Kareken’s
life and added it would be “inhumane to deny him the basic pain management and
medication he requires to live a reasonable life with [sic] undue
suffering.”
Kareken testified by deposition
on March 17, 2016. Kareken
sees Dr. Htin to receive prescriptions for
Hydrocodone for the low back condition related to the 2004 injury. He indicated he had never been prescribed
narcotic medications for any other injury.
With the exception of three visits for epidural blocks for his neck, all
of his treatment with Dr. Htin has been related to
the 2004 injury. Hydrocodone helps to
control his pain but does not completely relieve it. He continues to have burning, aching and
sharp pain in his right leg down to his foot and burning pain in his left leg
down to the knee.
The ALJ first noted M.H. bore the burden of proof regarding
the reasonableness and necessity of the treatment, while Kareken
maintained the burden of proving the contested expenses are causally related to
the work injury. The ALJ then determined:
The
numerous health conditions make it very difficult to determine what is and what
is not related to the work injury. That
being said, there is no convincing evidence stating why Plaintiff should
continue narcotic medications for 12 years after the work injury as these are
not recommended for long term control of pain.
Therefore, it is found Hydrocodone and Gabapentin are not work
related. They may be reasonable to treat
some other condition but not the work injury.
Absent narcotics, there is no reason why Plaintiff would need to
continue treating with Dr. Htin as related to the
work injury. Diclofenac and Robaxin are found reasonable, necessary and work related as
stated by the treating physician.
Defendant Employer has met its burden of proving the treatment with Dr. Htin and prescriptions for Hydrocodone and Gabapentin are
not reasonable and necessary for the cure, and/or relief of the work injury and
non-compensable. However, Robaxin (methocarbamol) and Diclofenac are found
compensable.
On appeal, Kareken argues the ALJ
applied an incorrect burden of proof in deciding the dispute, contending the
ALJ’s decision implies the burden of proof was on him instead of the party
seeking to reopen. Kareken
believes the ALJ’s decision evinces a lack of understanding of the types of
medication prescribed, as Gabapentin is not a narcotic. Kareken argues the
ALJ’s finding that narcotic prescriptions are not recommended for long term
control of pain is not supported by substantial evidence, and the decision
fails to state an evidentiary basis for its conclusions.
We begin by noting Kareken did not file a petition for reconsideration and
appealed directly to the Board. An ALJ must
be afforded the opportunity to make any corrections, via petition
for reconsideration, concerning a misunderstanding of the evidence upon which
the fact-finder relies. Pursuant to KRS 342.285, an award or order of the ALJ shall be
conclusive and binding as to all questions of fact if a petition for
reconsideration is not filed as provided for in KRS 342.281. Absent a petition for
reconsideration, questions of fact, including the adequacy
of the ALJ’s findings of fact, are not preserved for appellate review. Brasch-Barry General Contractors v. Jones, 175 S.W.3d 81, 83 (Ky. 2005). See
also Hornback v. Hardin Memorial
Hospital, 411 S.W.3d 220, 223 (Ky. 2013).
The issue is narrowed to whether the ALJ’s decision is supported by
substantial evidence in the record. Halls Hardwood Floor Co. v. Stapleton, 16 S.W.3d 327 (Ky.
App. 2000). 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 supporting the ultimate conclusion. Eaton Axle Corp. v. Nally, 688 S.W.2d
334 (Ky. 1985).
Kareken first argues the ALJ
improperly placed the burden on him to establish the contested treatments are
work-related. We agree with Kareken that a certain amount of confusion exists in
current appellate case law as to which party bears the burden of proving
work-relatedness. See Kingery v. Sumitomo
Electric Wiring, 481 S.W.3d 492 (Ky. 2016)(Supreme
Court declined to address the issue of which party bears the burden of proof
regarding work-relatedness); C&T of Hazard v. Stollings,
2013 WL 5777066 (Ky. 2013)(unpublished opinion placing burden on employer to
establish work-relatedness). A published
appellate opinion on this issue would be of benefit to the workers’
compensation bar.
However, we need not delve too far into this issue because,
here, the ALJ correctly stated M.H. bore the burden of proof regarding the
reasonableness and necessity of the contested treatment. The record contained conflicting evidence
regarding the reasonableness and necessity of the prescriptions for Hydrocodone
and Gabapentin. 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
opinion of Dr. Baumgartl constitutes substantial evidence
supporting the ALJ’s determination that prescriptions for Hydrocodone and
Gabapentin and the treatment with Dr. Htin are not
reasonable and necessary. Dr. Baumgartl indicated there was not sufficient documentation
regarding functional benefit or improvement to support continued treatment with
Hydrocodone and Gabapentin. He noted
current guidelines recommend the use of Gabapentin for neuropathic pain, and Kareken’s records do not document the presence of
neuropathy.
Although no physician directly stated use of narcotics is
only proper for short duration treatment of pain, the opinion of Dr. Baumgartl and the incorporated provisions of the ODG
provided a reasonable basis for the ALJ to infer long term use of narcotic
medication is not recommended. Dr. Baumgartl’s report establishes long term use of narcotic
medication is not acceptable in the absence of proper monitoring and
documentation of pain relief, functional status, appropriate medication use,
and side effects. Dr. Baumgartl clearly stated the documentation necessary for
continued use was not present in the records.
The ALJ could reasonably conclude continuing use of Hydrocodone and
Gabapentin was not reasonable and necessary.
As noted by the ALJ and acknowledged by Kareken,
the sole purpose of treatment by Dr. Htin was to
obtain narcotic medication that Kareken’s physician
could not or would not provide. Thus,
the ALJ could reasonably conclude treatment with Dr. Htin
was not reasonable or necessary.
Dr. Ballard also opined the current pain treatment was not
related to the effects of the 2004 injury.
Instead, she attributed the need for treatment to multiple pre-existing
back problems, a subsequent motor vehicle accident, and shoulder
surgeries. There being substantial evidence to support the ALJ’s finding on this issue, it may not
be disturbed on appeal. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
Kareken correctly points out the
ALJ made a factual finding that Hydrocodone and Gabapentin are not
work-related. However, she also made
findings indicating these medications are not reasonable and necessary for the
treatment of his work-related injury. We
also acknowledge the ALJ’s erroneous reference to Gabapentin as a “narcotic”
pain medication. Nonetheless, because no
petition for reconsideration was filed, we cannot consider the adequacy of the
ALJ’s factual findings. Our review is
limited solely to whether the ultimate decision is supported by substantial
evidence and, for the reasons set forth above, we conclude that it is.
Accordingly, the July 28, 2016 Medical Dispute Opinion and Order rendered by Hon. Jane Rice Williams, Administrative Law Judge, is hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON. PETER NAAKE
2303 RIVER RD #300
LOUISVILLE, KY 40206
COUNSEL
FOR RESPONDENT:
HON KYLE L JOHNSON
610 S. 4TH STREET, SUITE 701
LOUISVILLE, KY 40202
ADMINISTRATIVE
LAW JUDGE:
HON JANE RICE WILLIAMS
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
