Workers’
Compensation Board
OPINION ENTERED: March 3, 2017
CLAIM NO. 200586164
UNITED PARCEL SERVICE INC PETITIONER
VS. APPEAL FROM HON. JEANIE OWEN MILLER,
ADMINISTRATIVE LAW JUDGE
MARY THOMPSON
JASON LEE, M.D.
HON. JEANIE OWEN MILLER,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. United Parcel Service, Inc (“UPS”) appeals from the September 8, 2016
Medical Fee Opinion and Order and the October 5, 2016 Order on Reconsideration
rendered by Hon. Jeanie Owen Miller, Administrative Law Judge (“ALJ”). The ALJ determined a compound cream is a
reasonable and necessary medical expense for the cure and relief of Mary
Thompson’s (“Thompson”) neck and right shoulder injury. UPS argues the ALJ’s decision is not based
upon substantial evidence. For the
reasons set forth herein, we affirm.
Thompson injured her
neck and right shoulder on March 14, 2005 when she stepped from a package
truck. Her claim was settled by
agreement approved on February 19, 2009 and she retained the right to future
medical benefits. On April 13, 2016, UPS
filed a Form 112 and motion to reopen, challenging the compensability of
various treatments recommended by Dr. Jason Glenn Lee.
This appeal concerns
only the compensability of compound cream recommended by Dr. Lee. Dr. Lee submitted a letter in addition to his
treatment notes. In the letter, he
explained Thompson was previously taking oral pain medication but was able to
reduce her regimen after starting targeted facet injections and topical
treatment with a compound cream.
Thompson reported to Dr. Lee that the facet treatments and compound
cream significantly reduced her secondary myofascial pain, and reduced her need
to take morphine. Dr. Lee further cited
recent CDC guidelines which recommend opioid medications be minimized. He acknowledged the lack of research
concerning topical compound creams, but cited their effectiveness in Thompson’s
case with minimal side effects. He also
noted the individual ingredients in the compound cream can be beneficial for
the type of pain syndrome Thompson experiences.
Dr. Lee’s treatment notes document pain reduction with fewer adverse
side effects than oral medication.
Dr. Terry Troutt
conducted a utilization review and recommended facet injections be denied. Regarding compound creams, Dr. Troutt
explained they are largely experimental and there is no research documenting
their efficacy. He further noted the
particular combination recommended by Dr. Lee – which includes baclofen,
cyclobenzaprine, and gabapentin – are not supported by guideline criteria for
topical use. On this basis, he concluded
the compound cream is not reasonable or medically necessary.
After noting UPS’
burden to prove the contested treatment is unreasonable or unnecessary, the ALJ
explained she found Dr. Lee’s treatment notes and letter most persuasive
regarding the compound cream. She
explained that Dr. Troutt’s opinion is based on reasonableness pursuant to the
Official Disability Guide, which have not been adopted by the Kentucky Workers’
Compensation system. She also explained
Dr. Lee’s treatment notes are particularly persuasive because they documented
the outcome after use. The ALJ concluded
the compound cream is compensable.
UPS petitioned for
reconsideration, arguing the compound cream cannot be considered reasonable and
necessary because it is an experimental treatment. The petition was denied, and UPS now appeals,
making the same argument. It emphasizes
that even Dr. Lee acknowledged the lack of research confirming the efficacy of
compound creams.
The ALJ in this claim was
presented with differing medical opinions from competent physicians. Under these circumstances, the ALJ is
afforded the discretion to determine whom and what to believe. Whittaker v.
Rowland, 998 S.W.2d 479, 481 (Ky. 1999). Unlike the circumstances in Square D Co.
v. Tipton, 862 S.W.2d 308 (Ky. 1993), there was no testimony that compound
creams are considered unproductive or outside the type of treatment generally
accepted by the medical profession as reasonable. Rather, both physicians acknowledged a dearth
of research confirming the efficacy of compound creams. However, we have found no Kentucky case law
indicating a treatment is non-compensable due solely to the lack of research
concerning its effectiveness.
Dr. Lee’s treatment notes
document the relief the compound cream provided Thompson. He also provided his medical opinion that the
compound cream is reasonable and medically necessary for the relief of
Thompson’s pain. This proof constitutes
substantial evidence to support the ALJ’s determination that the compound cream
provides relief, and is compensable. Special Fund v. Francis,
708 S.W.2d 641 (Ky. 1986). We are
therefore without authority to disturb the ALJ’s decision.
Accordingly, the September
8, 2016 Medical Fee Opinion and Order and the October 5, 2016 Order on
Reconsideration rendered by Hon. Jeanie Owen Miller, Administrative Law Judge,
are hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON SARAH C ROGERS
HON K LANCE LUCAS
1511 CAVALRY LN # 201
FLORENCE, KY 41042
COUNSEL
FOR RESPONDENT:
HON JOHN C MORTON
PO BOX 883
HENDERSON, KY 42419
RESPONDENT,
MEDICAL PROVIDER:
JASON LEE, M.D.
1000 BRECKENRIDGE ST #205
OWENSBORO, KY 42303
ADMINISTRATIVE
LAW JUDGE:
HON JEANIE OWEN MILLER
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601