Workers’
Compensation Board
OPINION
ENTERED: March 10, 2017
CLAIM NO. 200476983
ARCHWAYS FLORENCE INC. #3398
d/b/a/ MCDONALDS/AIK PETITIONER
VS. APPEAL FROM HON. JANE RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE
FRANK MIKE BATTAGLIA
DR. ALLEN RISON
and HON. JANE RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
REVERSING
AND REMANDING
WITH
DIRECTIONS
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Archways Florence Inc. #3398 d/b/a McDonalds/AIK (“Archways”) seeks review of
the August 23, 2016, Medical Fee Opinion and Order on Remand of Hon. Jane Rice
Williams, Administrative Law Judge (“ALJ”) resolving a medical fee dispute
filed by Archways in favor of Frank Mike Battaglia (“Battaglia”) and Dr. Allen
Rison.[1] The ALJ determined Battaglia was
entitled to six weeks of physical therapy, six lumbar sympathetic injections,
and the prescription for Tizanidine recommended by Dr. Rison as reasonable and
necessary treatment of Battaglia’s work injury.
Archways also appeals from the October 13, 2016, Order denying his
petition for reconsideration.
The June 14, 2006, Opinion and Award of Hon. A. Thomas
Davis, Administrative Law Judge (“ALJ Davis”) described Battaglia’s work injury
as follows:
The
Plaintiff was credible regarding the current state of his physical condition.
Mr. Battaglia suffered a severe injury on August 25, 2004, when he fell 15-20
feet while at work landing on his heel on a concrete surface shattering his
calcaneus bone. The injury required an open reduction of the fracture. Due to
the severe splintering of the bone, Mr. Battaglia needed the permanent
placement of a metal plate secured by approximately sixty screws. Objective
testing following the surgery revealed a fibrous union and not a hard union of
the bony material. The medical record shows that Mr. Battaglia has developed
severe subtalar arthritis and synovitis with continued swelling, significant
atrophy of the left lower extremity and significant pain.
ALJ Davis determined Battaglia
sustained a 30% impairment rating as a result of the injury and enhanced his
permanent partial disability benefits by the three multiplier since he did not
retain the capacity to return to the type of job he was performing at the time
of the injury.
On February 12, 2015, Archways, through its insurance
carrier, AIK, filed a Motion to Reopen, Form 112 Medical Fee Dispute, and
Motion to Join Medical Provider, Dr. Rison.
Based on the January 12, 2015, Utilization Review (“UR”) report of Dr.
Waldtraut Jedamski, board certified in anesthesiology and pain management,
Archways contested Dr. Rison’s request for approval of six lumbar sympathetic
injections, six weeks of physical therapy three times a week, and the
prescription for Tizanidine. In his UR
report, Dr. Jedamski opined the lumbar sympathetic injections should be reduced
to four, the six weeks of physical therapy reduced to four weeks, and the
prescription for Tizanidine denied. A
copy of Dr. Jedamski’s UR report was attached to the Form 112.
By Order dated March 10, 2015, the ALJ found Archways made
a prima facie showing for reopening
and sustained the motion to reopen, joined Dr. Rison as a party, and set a
telephonic conference. The order further
stated as follows:
The parties shall not refile or ‘designate’ medical reports/records
attached to the motion to reopen or Form 112. Such are already considered
evidence. No Form 111 is required.
The March 30, 2015, Scheduling Order
reveals only counsel for Archways participated in the telephonic
conference. The parties were given
thirty days to introduce proof.
Significantly, when it filed its Motion to Reopen, Form 112, and Motion to Join
Medical Provider, Archways served a copy of all three pleadings on Battaglia
and Dr. Rison. Battaglia did not respond
to the motions and Form 112.
In a November 20,
2015, Order, this Board noted although service was listed upon Battaglia’s
counsel, all mailings to Battaglia’s former counsel from the Department of Workers’
Claims had been returned as undeliverable and there is no evidence the former
attorney was served with any of the documents.
The Order also noted that Battaglia’s former counsel had not
participated in the reopening and the appeal.
The Order noted there had been no response to Archways’ brief. Accordingly, this Board placed the appeal
placed in abeyance and granted Battaglia and Dr. Rison thirty days from the
date of the order to submit briefs. Attached
to the order was a copy of the applicable regulations pertaining to the
requisite contents of a brief. The Order
cautioned both Battaglia and Dr. Rison that failure to submit a brief may
result in a decision granting the relief sought by Archways.
Battaglia’s former
attorney did not enter an appearance, and apparently Battaglia was served with
most if not all of the pleadings and orders entered in this case. Consequently, we conclude Battaglia was
properly notified of the proceedings and subject to the orders of the ALJ in these
proceedings.
The May 5, 2015, “BRC Order in
Medical Fee Dispute,” reveals the contested issues were:
“reasonableness/necessity of Tizanidine/physical therapy.” It also states the parties waived a hearing
and the matter was submitted as of May 5, 2015.
Only counsel for Archways signed the order.
In a May 12, 2015, Medical Fee Opinion and Order, the ALJ
resolved the medical fee dispute in favor of Battaglia providing the following
findings of fact and conclusions of law:
A Telephonic Benefit Review Conference was
held on May 5, 2015. Neither Plaintiff
nor Dr. Rison participated in the phone conference. The final hearing was waived and the Medical
Fee Dispute was submitted on the record for a decision.
Defendant Employer introduced the January
12, 2015 utilization review report of Waldtraut Jedamski, M.D. who reviewed
records and found the contested treatment should not be certified.
Specifically, he recommended 4 blocks rather than 6 and 4 weeks of therapy
rather than 6. He recommended denial of
Tizanidine. The records of Dr. Rison
were not attached but were summarized by Dr. Jedamski. After careful review of Dr. Jedamski’s
report, it appears much of his reasoning for denial is based on lack of
documentation and verification of specific symptoms. This logic for trimming away at the
recommended treatment of the treating physician is not convincing. The report notes that Tizanidine is shown to
be effective for decrease in low back pain and myofascial 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 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 (KY 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 specific instance, Defendant
Employer has moved to reopen this claim to challenge the reasonableness and
necessity of Tizanidine, Physical Therapy and Lumbar Sympathetic
Injections. The opinion of Dr. Jedamski
is not persuasive enough to convince the ALJ the recommendations of the
treating physician are not reasonable and necessary for the cure and/or relief
of the effects of the work injury at this time. Defendant Employer has not met
its burden of proof on these issues.
Therefore, Tizanidine, Physical Therapy and Lumbar Sympathetic
Injections as recommended by Dr. Rison are found to be compensable.
Archways filed a
petition for reconsideration. By Order
dated June 22, 2015, the ALJ “dismissed” the petition for reconsideration as
being untimely. This prompted Archways to file a second petition for
reconsideration which the ALJ denied.
Archways appealed to the Board arguing the ALJ erred in resolving the
medical fee dispute by finding the contested medical treatment and prescription
reasonable, necessary, and compensable. It also argued the ALJ erred in
dismissing its petitions for reconsideration as being untimely filed.
In an Opinion entered
June 24, 2016, this Board reversed the ALJ’s determination the petitions for
reconsideration had not been timely filed and vacated the decision resolving
the medical fee dispute in favor of Battaglia holding:
As noted above, the ALJ’s determination
must be based upon the appropriate standard. In this instance, the ALJ
correctly identified the employer bears the burden of proof of establishing the
contested treatment is not reasonable or necessary. However, pursuant to Kingery v. Sumitomo
Electric Wiring, supra, the ALJ declined to render a decision in
accordance with the uncontroverted evidence of record. Because the ALJ failed to render a decision
in accordance with the evidence, and failed to provide a valid reason for doing
so, her decision must be vacated. On remand, she must provide a decision in
accordance with the evidence as set forth above. We make no findings, as we are
not permitted to do so. Likewise, we do not direct the ALJ to arrive at any
particular result. On remand, the ALJ must make a determination based upon the
evidence.
Regarding the timeliness of Archway’s
petitions for reconsideration, we reverse. The applicable regulations set forth
above clearly establish the petitions were timely filed and erroneously
dismissed.
Accordingly,
the May 12, 2015 Medical Fee Opinion and Order, and the
orders dismissing the petitions for reconsideration rendered June 22, 2015 and
July 29, 2015 by Hon. Jane Rice Williams, Administrative Law Judge, are hereby REVERSED IN PART, VACATED IN PART and REMANDED for additional determination in
accordance with the direction set forth above.
In her August 23,
2016, Medical Fee Opinion and Award on Remand, the ALJ again resolved the
medical fee dispute in favor of Battaglia providing the following findings of
fact and conclusions of law:
A Telephonic Benefit Review Conference was held on
May 5, 2015. Neither Plaintiff nor Dr.
Rison participated in the phone conference.
The final hearing was waived and the Medical Fee Dispute was submitted
on the record for a decision.
Defendant Employer
introduced the January 12, 2015 utilization review report of Waldtraut
Jedamski, M.D. who reviewed records and found the contested treatment should
not be certified. Specifically, he recommended 4 blocks rather than 6 and 4
weeks of therapy rather than 6. He
recommended denial of Tizanidine. The records of Dr. Rison were not attached
but were summarized by Dr. Jedamski.
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 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 specific instance, Defendant
Employer has moved to reopen this claim to challenge the reasonableness and
necessity of Tizanidine, Physical Therapy and Lumbar Sympathetic Injections.
This dispute is only raised as to reasonableness and necessity of treatment and
does not include a dispute over work relatedness. After careful review of Dr.
Jedamski’s report, it appears much of his reasoning for denial is based on lack
of documentation and verification of specific symptoms as well as the official
disability guidelines (ODG), guidelines not adopted or authoritative in the
state of Kentucky. This logic for trimming away at the recommended treatment of
the treating physician is not convincing. The report notes that Tizanidine is
shown to be effective for decrease in low back pain and myofascial pain. The
opinion of Dr. Jedamski is not persuasive enough to convince the ALJ that the
recommendations of the treating physician are not reasonable and necessary for
the cure and/or relief of the effects of the work injury. Defendant Employer has not met its burden of
proof on these issues. The ALJ is asked to cut treatment based on a reviewing
physician’s opinion, an opinion formed by relying on guides not adopted in this
state. Furthermore, Plaintiff’s willingness to participate in physical therapy
is commendable. Therefore, Tizanidine, Physical Therapy and Lumbar Sympathetic
Injections as recommended by Dr. Rison are found to be compensable.
Archways filed a
petition for reconsideration making the same argument it now puts forth on
appeal.
In the October 13,
2016, Order overruling the petition for reconsideration, the ALJ found the
petition for reconsideration to be an impermissible re-argument of the
merits. She noted the medical dispute
related to the reasonableness and necessity of the treatment not
work-relatedness, and the burdens of proof are vastly different. The ALJ also noted that in Kingery v.
Sumitomo Electric Wiring, 481 S.W.3d 492 (Ky. 2016) the Supreme Court dealt
with the burden of proof regarding a work-related issue rather than the reasonableness
and necessity of the treatment.
On appeal, Archways again asserts the ALJ
erred in finding the contested medical treatment compensable and ignoring the
uncontroverted medical evidence establishing the treatment is not reasonable
and necessary. Archways argues the
Supreme Court’s holding in Kingery v. Sumitomo Electric Wiring, supra,
mandates reversal and a ruling in its favor.
It argues the holding in Kingery is controlling in the case sub judice as its holding is not
confined to issues of work-relatedness or causation, but also extends to
instances where the medical evidence is unrebutted regarding the reasonableness
and necessity of the contested medical treatment.
Archways maintains the
ALJ erroneously substituted her judgment and misinterpreted Dr. Jedamski’s
opinions. It argues Dr. Jedamski’s
opinions regarding each of the contested medical treatments were premised upon
his medical expertise and supported by citations to accepted medical
literature. Archways notes Dr. Rison had
the opportunity to express his disagreement with Dr. Jedamski’s opinions and
did not. Thus, Dr. Rison’s failure to
oppose Dr. Jedamski’s opinions is a tacit admission on his behalf that the
conclusions were medically well reasoned and correct.
Since Dr. Jedamski’s opinion addressed
issues which are exclusively within the province of the medical experts, Archways
argues the ALJ cannot reject his uncontroverted medical opinions.
Archways maintains
that contrary to the ALJ’s findings, the opinions of Dr. Jedamski were his own
uncontroverted opinions which were supported by the Official Disability
Guidelines (“ODG”). It posits that even
though the ODG is not officially adopted in Kentucky, it is the “type of
published peer review medical literature physician’s utilize in formulating
their medical opinions.” It seeks
reversal of the ALJ’s opinion and remand to the ALJ for a finding the medical
treatment and prescription are unreasonable and unnecessary.
In his January 12, 2015, UR report, Dr.
Jedamski identified the treatment requested and provided his recommendations as
follows:
TREATMENT
REQUEST: Prospective: DOS: 12/31/2014
1.
Lumbar Sympathetic Injections over 6 appointments
2.
Physical Therapy 3 x 6
3.
Tizanidine 4 mg #90 with 5 refills
RECOMMENDATION:
1.
MODIFY Lumbar Sympathetic Injections over 4 appointments
2.
MODIFY Physical Therapy 3 x 4
3.
DENY Tizanidine 4 mg #90 with 5 refills
Dr. Jedamski went on
to provide a brief clinical summary and the following rationale for his
opinions:
1.
MODIFY Lumbar Sympathetic Injections over 4 appointments – Noted is sudden
onset of severe pain with swelling and allodynia in the left foot and 80-90%
relief of the pain post a lumbar sympathetic block; these findings are supportive
of a diagnosis of Complex Regional Pain Syndrome. Sympathetic blocks are the
most beneficial long-term if done early and aggressively in a series close
together; ODG supports a series of 3-6 if a diagnostic block provided
significant relief. These blocks should be done along with an aggressive
rehabilitation with physical therapy and exercise; doing another 4 blocks
weekly while providing the therapy aggressively affords him the best chance to
obtain significant improvement and possible remission. The need for an
appropriateness of more blocks should be shown. If four more blocks each only
provides some temporary relief, further blocks would probably not be supported.
2.
MODIFY Physical Therapy 3 x 4 – Noted is sudden onset of severe pain with
swelling and allodynia in the left foot and 80-90% relief of the pain post a
lumbar sympathetic block; these findings are supportive of a diagnosis of
Complex Regional Pain Syndrome. Sympathetic blocks are the most beneficial
long-term if done early and aggressively in a series close together; ODG
supports a series of 3-6 if a diagnostic block provided significant relief.
These blocks should be done along with an aggressive rehabilitation with
physical therapy and exercise; doing another 4 blocks weekly while providing
the therapy aggressively affords him the best chance to obtain significant
improvement and possible remission. It is important, however, that this therapy
be done appropriately since it can make the disease process worse otherwise.
After a trial of 12 PT sessions there should be evidence provided that he is
aggressively doing an independent home exercise program and continuing to show
progress. The need for a therapist to be involved for more than 4 weeks at
three times a week is not apparent and must be shown to continue with formal
PT.
3.
DENY Tizanidine 4 mg #90 with 5 refills – Tizanidine is a muscle relaxant that
is not usually indicated for any type of CRPS or sympathetically-mediated pain
in the foot; spasms are not shown. The directions are to utilize up to 3 at
night; the usual dosing is at 4-6 mg at a time and a dose of up to 3 at night
as an initial trial is not supported for any findings. If there is any need for
a medication for the CRPS type pain and difficulties with sleep (the latter not
even described), this is not a medication that is a first-line medication and
it is not clear why this medication trial is being pursued.
After providing his rationale, Dr. Jedamski cited to various chapters
of the ODG he had consulted.
No lay testimony or
other medical evidence was introduced in these proceedings.
In Kingery v.
Sumitomo Electric Wiring, supra, Sumitomo challenged the continuing
compensability of Kingery’s treatment claiming both the currently prescribed
drugs were not reasonable and necessary treatment of Kingery’s present
complaint and her complaints were not related to the 1989 work injury. The Supreme Court provided the following
summary of the medical fee dispute and what transpired leading up to the ALJ’s
decision:
On February 15, 2012,
Sumitomo filed this medical-fee dispute to contest the reasonableness and
necessity of the treatment being provided by Kingery's treating physician, Dr.
Todd Douglas, as well as the relatedness of that treatment to the 1989 work
injury. Specifically, Sumitomo contested the compensability of Kingery's use of
Lorcet, [footnote omitted] Skelaxin, [footnote omitted] Xanax, [footnote omitted] and Celexa, [footnote omitted] which Dr. Douglas was
prescribing at the time of filing of this medical dispute. But after
this dispute was filed, Dr. Douglas stopped treating Kingery for the alleged
effects of her work injury (while continuing to provide treatment for her other
unrelated medical concerns). [footnote omitted] The parties and the ALJ,
however, agreed to proceed with resolving the dispute as filed as if the
medications at issue were still being prescribed by Dr. Douglas. Sumitomo also
agreed to assist Kingery in finding a new physician to take over her treatment.
In support of its
medical dispute, Sumitomo filed the evaluation report of Dr. David Randolph,
[footnote omitted] who evaluated Kingery at Sumitomo's request on December 29,
2011. He also testified via deposition on August 27, 2012. Based on the history
Kingery provided, his review of the available medical records, and his own
physical examination of Kingery, Dr. Randolph concluded that her current
subjective complaints of pain are unrelated to the mild sprain or strain injury
caused by her work for Sumitomo in 1989 and that the drugs being prescribed are
not reasonable and necessary to treat those complaints, whatever their cause.
Aside from Dr. Randolph's report and
deposition, the post-award medical evidence in this case is quite sparse. The
record contains two treatment notes from Dr. Douglas, dated February 1 and
February 29, 2012, which were her final two visits with him related to the work
injury. Dr. Randolph also reviewed and summarized in his report more than 50
medical records documenting Kingery's treatment with Dr. Douglas from 1999
through 2011. According to those notes, Dr. Douglas's treatment had been
directed, in relevant part, toward Kingery's complaints of pain—in her low,
middle, and upper back, and neck—as well as stress, anxiety, and depression.
This treatment exclusively involved prescribing various narcotics and other
drugs. No objective abnormalities are noted.
Kingery filed no
medical evidence to rebut Dr. Randolph's opinions. Instead, she testified about
her original work injury, work history, medical history, and current medical
condition. As noted above, she testified that she has been unable to work over
the past two decades due to her medical condition. She testified that pain in
her neck and upper back has persisted and worsened since her 1989 work injury
and that it now involves everything from her low back, to her mid-back and
ribs, and up to her neck. She confirmed that she has never had surgery for her
complaints and that surgery has never been recommended. She testified that her
low-back pain first began as a result of a fall in 2011, and she disputed the
accuracy of Dr. Douglas's treatment notes prior to 2011 referencing low-back
pain as her primary complaint. She testified that the drugs prescribed by Dr.
Douglas would dull the pain, but that it never completely went away.
Id. at 494-496.
The Supreme Court noted that
despite the absence of any medical evidence to the contrary, the ALJ
disregarded Dr. Randolph’s opinions and instead relied upon Kingery’s lay
testimony in finding her current complaints were related to the subject work
injury and the drugs being prescribed for those complaints were reasonable and
necessary. The Supreme Court concluded
the ALJ erred in rejecting the uncontroverted medical evidence stating as
follows:
But, as the Court of
Appeals noted, ALJs are not permitted to rely on lay testimony, personal experience,
and inference to make findings that directly conflict with the medical
evidence, except in limited situations, such as matters involving observable
causation. Mengel v. Hawaiian–Tropic Northwest and Central
Distributors, Inc., 618 S.W.2d 184, 187
(Ky.App.1981).
In other words, “when the question is one properly within the province of
medical experts, the [ALJ] is not justified in disregarding the medical
evidence.” Id.
First, none of the
decision-makers below analyzed the compensability of the Xanax and Celexa separately from that of the Lorcet and Skelaxin, although Dr. Randolph did so in his report and
deposition testimony. These two pairs of drugs present distinct issues because
the latter treat physical ailments (which are what Kingery's original work
injury involved) while the former treat psychological concerns (which her work
injury did not involve).
After scrutinizing the record for
substantial evidence relating Kingery's use of Xanax and Celexa to the 1989 work injury, it is apparent that there
is none. Dr. Douglas, her former treating physician, stated in his most recent
treatment note that Kingery was taking those drugs because she was “[n]ot ...
able to work, and decreased income causes her a lot of stress.”
But her present
inability to work cannot be related to her 1989 work injury because, as ALJ
Lovan found in the original opinion and award, the work-related injury did not
prevent her from returning to her employment with Sumitomo (or any other employment
for that matter). Any present stress or anxiety she might experience as a
result of not working, then, is necessarily unrelated to her work injury. Indeed, the
original opinion and award includes an express finding that any alleged
psychological concerns were not the result of the work injury. Any medical
expenses related to relieving such symptoms are thus non-compensable.
Accordingly, Sumitomo cannot be obligated to pay for Kingery's use of Xanax and Celexa.
Next, with respect to
the Lorcet and Skelaxin, there can be no doubt that the medical cause of
Kingery's subjective complaints of pain for which these drugs were being
prescribed (as well as the reasonableness and necessity of those drugs to treat
such complaints) is a question properly within the province of medical expert
opinion. Mengel, 618 S.W.2d at 187. Therefore, the ALJ was not justified in disregarding the
medical evidence in favor of Kingery's lay testimony. Id.
Id.
at 496-497.
The Supreme Court addressed the
import of Dr. Randolph’s opinions:
And this is where Dr. Randolph's expert opinion comes into play.
According to Dr. Randolph, Kingery's current medically unexplained
symptoms—i.e., unverifiable complaints of pain and related magnifications of
symptoms, such as universally-restricted range of motion and inconsistent
strength-testing results—bear no physiological relationship to the mild workplace
strain she experienced in 1989.
As Dr. Randolph put it, “there is absolutely nothing [in the mechanism of
injury described by Kingery] that would fit the pattern of subjective
complaints lasting more than 20 years.... There is nothing in published medical
literature that would indicate an explanation for these subjective complaints
lasting for 23 years.” Instead, Dr. Randolph opined that the “significant
unrelated medical comorbid states,” principally her morbid obesity, are the actual source of her ongoing subjective
complaints. Given the time frame and extraneous health issues involved, the
medical causation of Kingery's current complaints was necessarily within the
province of medical expertise. See Mengel, 618 S.W.2d at 187.
Additionally, Dr. Randolph's opinions with respect to the
reasonableness and necessity of Kingery's use of each of the drugs were also
based on sound medical science and reasoning and were well within the sole
province of medical expert opinion. He aptly noted the substantial dangers and
health risks attendant to use of these drugs, both individually and
collectively with the multitude of drugs Kingery was being prescribed for her
many other unrelated complaints and clinical conditions. As to the opioid (Lorcet) and muscle relaxant (Skelaxin) in particular, he contrasted the substantial risks
the narcotic drugs posed with their lack of long-term efficacy in treating
chronic benign pain (a fact that is borne out here by Kingery's persistent, or
even worsening, and migrating complaints). And as Dr. Randolph noted, such
views are widely accepted in the medical community and supported by a
significant body of peer-reviewed medical literature.
Yet, in Kingery's view, all that uncontroverted medical evidence
can be tossed aside, without any countervailing evidence supporting the
decision to do so, because the ALJ decided to simply disbelieve that proof. The
ALJ gave two bases for disbelieving Dr. Randolph's expert medical opinions,
neither of which hold up under scrutiny.
First, the ALJ found that Dr. Randolph's testimony lacked
credibility and was unreasonable because he recommended “no treatment at all
for her workrelated condition.” This finding is not supported by the record.
Contrary to the ALJ's finding, Dr. Randolph did recommend
treatment for Kingery specifically geared toward alleviation of her subjective
chronic pain (despite believing that such complaints were not related to the
two-decade-old strain injury). In addition to significant intervention for her
many unrelated problems, he believed that the best treatment for Kingery would
be to stop taking the drugs—drugs that had not only proven ineffective in
treating her long-term chronic pain, but were in all likelihood at least partly
to blame for the worsening, migrating complaints—and that she commit to a home
exercise program *499
directed at the true source of the vast majority of her problems (i.e., her morbid obesity and deconditioning from inactivity). Though this
fell short of a recommendation of pharmacological or surgical intervention, it
is not a recommendation of no treatment at all.
And, rather than casting doubt on the credibility of those
recommendations, Kingery's testimony corroborates them. Again, she admitted
that her difficulties are ever-present, despite all pharmacological
interventions. And, she claims her problems have worsened and migrated all over
her torso. Dr. Randolph's recommendations account for these concerns and
reflect, in his expert medical opinion, the reality that her drug regimen has
not only been unsuccessful in treating her complaints, but is also likely to blame,
at least in part, for the progression of her worsening state of health. There is simply
no other reasonable medical explanation for why Kingery would still be
complaining, after over twenty years, of pain related to a past sprain or
strain injury, at least not in the record.
And the second dubious basis provided by the ALJ for rejecting
Dr. Randolph's opinions—the doctor's purported “skeptic[ism] that [Kingery's]
original injury was related to her work for [Sumitomo],” which was unreasonable
because “[t]his issue has long been settled since ALJ Lovan found her injury to
be work related in 1992”—is also unsupported in the record. Upon careful review
of Dr. Randolph's evaluation report, as well as the transcript of his
deposition testimony, it is clear that nowhere in either source of testimony
did Dr. Randolph state that he was skeptical that Kingery's work with Sumitomo
caused the original work injury. He did state that he believed her present
complaints of pain were unrelated to the 1989 injury, but that is a far cry
from claiming the original injury was not related to her work for Sumitomo.
Id.
at 498-499.
The Supreme Court held:
It is thus clear that the current ALJ rejected the
uncontroverted medical opinions, at best, based on a misreading of the record. In
any event, the ALJ's findings in this respect were not based on substantial
evidence and were insufficient to justify rejection of the medical evidence in
this case.
Of course, that is not to say that reasonable medical minds
could not disagree with Dr. Randolph's conclusions. After all, the human body
is perhaps the most complex system known to humankind, so very little will ever
garner unanimous consensus among medical professionals and experts. But this is
exactly why our legal system requires reliable expert proof on issues such as
medical causation and the necessity of medical treatment when they would not be
apparent to a layperson. It does so because this is the only way to reasonably
ensure that the fact-finder answers those *500
questions reasonably, rather than arbitrarily.
Such questions are solely within the province of medical experts
who are equipped with the proper education and experience to enable them to
provide reliable answers within a reasonable degree of medical probability. We
cannot accept ignoring uncontroverted medical evidence in favor of unreliable
lay testimony and the ALJs' own proclivities and experience when determining
such medical issues. That is not substantial evidence.
And it would not have required much medical evidence to support
the ALJ's decision to disregard Dr. Randolph's opinions here. Some contrary
report from Kingery's treating physician, for example, likely would have sufficed.
But that is not what occurred here. Indeed, nearly the opposite
happened: Dr. Douglas proactively declined to continue treating Kingery for her
alleged work-related complaints when he became aware that the compensability of
the treatment he was providing for those complaints was being questioned (while
continuing to see her for her other, unrelated medical problems). Even Kingery's
treating physician was unwilling to opine that the drugs he was prescribing
were reasonable and necessary to treat her complaints resulting from the 1989
work injury.
In the end, our rationale is slightly different than that of the
Court of Appeals, but of course “an appellate court may affirm a lower court's
decision on other grounds as long as the lower court reached the correct
result.” Emberton v. GMRI, Inc., 299 S.W.3d 565, 576 (Ky.2009). Whether or not the
employer had the burden of proof, under the circumstances of this case, the
evidence compels a finding that the treatment at issue is not compensable. See
Wagoner v. Smith, 530 S.W.2d 368, 369 (Ky.1975) (“In order to reverse the
findings of the board unfavorable to the claimant and upon which he had the
burden of proof the test is whether the evidence compelled a finding in his
favor.”). Upon careful review of the entire record, it is clear that the ALJ's
decision to wholly reject the uncontroverted medical evidence introduced by
Sumitomo in favor of Kingery's lay testimony, and thereby find that Kingery's
use of Xanax, Celexa, Lorcet, and Skelaxin is reasonable and necessary and related to the 1989
work injury, was not based on substantial evidence.
The questions in this medical dispute were undeniably those
which should fall within the sole province of expert medical opinion. When all
the medical evidence on such a question points to one conclusion, the ALJ acts
outside the immense discretion she otherwise typically enjoys when she rejects
that evidence in favor of lay testimony to reach a contrary conclusion without
sufficient justification for doing so.
Id.
at 499-500.
Kingery v. Sumitomo Electric
Wiring, supra, applies in the case sub judice since Archways’ medical evidence remained uncontradicted
and the issues to be resolved pertained to questions falling solely within the
province of the medical experts. Thus,
the ALJ erred in disregarding Dr. Jedamski’s opinions and in stating Kingery
does not apply in instances where the dispute concerns the reasonableness and
necessity of the treatment.
We find nothing in Dr. Jedamski’s
report indicating his reasons for modifying the number of lumbar injections and
physical therapy sessions, and denying the use of Tizanidine were based on a
lack of documentation and verification of specific symptoms. Further, Dr. Jedamski’s reference to the ODG
does not corrupt his opinions. The issue
before the ALJ concerned the need for lumbar sympathetic injections, physical
therapy, and Tizanidine, “questions falling solely within the province of
medical experts who are equipped with the proper education and experience to
provide the reliable answers within a reasonable degree of medical
probability.” Kingery at
500.
In the case sub judice, the ALJ erred in disregarding the unrebutted opinions
of Dr. Jedamski since the resolution of this medical fee dispute fell solely within
the province of expert medical opinion. The ALJ should have relied upon those
opinions since they constitute the only substantial evidence in the
record. The decision of the ALJ must be
reversed and the claim remanded to the ALJ with directions to enter an opinion
and order adopting the opinions of Dr. Jedamski regarding the proposed lumbar
sympathetic injections, physical therapy, and use of Tizanidine.
Accordingly, the August 23, 2016,
Medical Fee Opinion and Order on Remand and the October 13, 2016, Order
overruling the Petition for Reconsideration are REVERSED. This claim is REMANDED to the ALJ with directions to
enter a decision in favor of Archways in accordance with the views expressed
herein.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON GREG LITTLE
1510 NEWTOWN PIKE STE 108
LEXINGTON KY 40511
RESPONDENT/
PRO SE:
FRANK MIKE
BATTAGLIA
620 DEBBIE LANE
STE 41
ERLANGER KY 41018
RESPONDENT:
DR ALLEN RISON
340 THOMAS MORE PKWY STE 260
COVINGTON KY 41017
ADMINISTRATIVE
LAW JUDGE:
HON JANE RICE WILLIAMS
657 CHAMBERLIN AVE
FRANKFORT KY 40601
[1] The record is unclear as to whether the
employer is Archway Florence Inc. or Archways Florence Inc. In reliance upon the caption of the ALJ’s
decision and order, we will refer to it as Archways.