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January 15, 2016 201285818

Commonwealth of Kentucky 

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