April 21, 2017 199432554

Commonwealth of Kentucky 

Workers’ Compensation Board




OPINION ENTERED:  April 21, 2017



CLAIM NO. 199432554






















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BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 


ALVEY, Chairman.   Pamela S. Marlowe (“Marlowe”) and Elizabeth Scheidler, APRN (“Nurse Scheidler”) appeal from the Medical Fee Opinion and Order rendered October 31, 2016 by Hon. Jonathan R. Weatherby, Administrative Law Judge (“ALJ”) resolving a medical fee dispute in favor of Hardee’s Food Systems, Inc. (“Hardee’s”).  Marlowe and Nurse Scheidler also appeal from the December 9, 2016 order denying their petition for reconsideration.

          On appeal, Marlowe and Nurse Scheidler argue the ALJ erred in relying upon the “objective functional benefit” test “embraced” by Dr. David Simolins.  They argue the contested treatment with Ambien provides “some relief” to Marlowe, and the ALJ erred in finding it non-compensable.  Because the ALJ’s determination is supported by substantial evidence, provided an adequate rationale for his decision, and a contrary result is not compelled, we affirm.

          Marlowe sustained a work-related low back injury on June 8, 1994.  Hardee’s filed a motion to reopen Marlowe’s claim on March 16, 2016 to challenge ongoing treatment with Oxycodone and Zolpidem.  However, Hardee’s improperly listed the claim number as 2001-93698.  This was actually a claim Marlowe later filed and settled for injuries she sustained on December 27, 2000 while working for Movies to Go d/b/a Blockbuster.  She settled that claim by agreement approved on June 17, 2013.  The agreement reflects Marlowe sustained injuries to her lumbar and cervical spines, as well as knee strains, when she tripped and fell while working for Blockbuster.  The settlement agreement reflects that claim was settled for a lump sum of $25,000.00, and included a waiver of future medical benefits for those conditions.

          On April 12, 2016, the ALJ issued an order reopening the claim.  On April 20, 2016, Hardee’s filed a motion to amend the reopening to reflect the correct claim number, 1994-32554 for the June 8, 1994 injury.  Hardee’s attached a copy of the Form 110 Settlement Agreement which was approved by Hon. Thomas A. Nanney, Administrative Law Judge, on July 17, 1995.  That settlement agreement reflects Marlowe sustained a “back injury” on June 8, 1994 while working for Hardee’s in Eddyville, Lyon County, Kentucky.  The claim was settled based upon a 45% permanent partial disability, but Marlowe did not waive her future medical benefits.  The ALJ issued an order allowing the reopening to be amended on June 8, 2016.

          In support of the motion to reopen, Hardee’s filed Dr. Simolins’ February 22, 2016 utilization review report.  Dr. Simolins noted the June 8, 1994 date of injury, and the fact Marlowe has received chronic opioid therapy since at least 2002.  She has had continued complaints of back and leg pain due to degenerative changes in the lumbar spine, and takes four doses of Percocet on a daily basis.  He stated Marlowe has had no objective functional gains from taking Oxycodone or Percocet, and there is no notation of the performance of a risk assessment or evidence of attempts to wean her from this medication.  He stated the request for continued usage of Oxycodone or Percocet is not certified.  He also stated Zolpidem, or Ambien, is only recommended for short-term treatment for insomnia.  However, Marlowe has treated with this medication since 2013, and therefore he likewise did not certify its continued use.

          Hardee’s also filed Dr. Terrance J. Wilkins’ report regarding the appeal from Dr. Simolins’ determination.  Dr. Wilkins noted he had reviewed Dr. Simolins’ report along with various records, notes and reports from Nurse Scheidler.  He had also reviewed the report prepared by Dr. Robert M. Weiss who examined Marlowe on April 8, 2014.  In upholding the denial of ongoing treatment with Oxycodone and Zolpidem, Dr. Wilkins stated as follows:

Recommendations have been made previously to discontinue the practice of prescribing short-acting opioid therapy for chronic musculoskeletal low back pain but it is apparent that no attempt to wean from the medication has been attempted.  Though the Morphine Equivalent Dosage is relatively low, there is minimal to no objective evidence of clinically significant function improvement on the basis of the addition of opioid therapy.  The clinical documentation submitted is not sufficient to warrant reversing the previous non-certification recommendation(s).


          In his report dated April 8, 2014, Dr. Weiss noted Marlowe injured her back while working at a fast food restaurant in 1994.  He observed she has taken narcotics on a daily basis for many years.  Marlowe reportedly had an adverse reaction to epidural steroid injections, and those were discontinued.  He noted Marlowe had chronic low back pain, and surgical intervention was inappropriate. 

          Nurse Scheidler submitted a note on June 20, 2016 stating she had treated Marlowe for several years for chronic low back pain due to a work injury.  She stated she treats Marlowe with Gabapentin for neuropathic pain due to bilateral foraminal stenosis, and right buttock, thigh and leg radiculopathy.  She noted treatment with Zolpidem was reduced from 10 mg to 5 mg in September 2015.  No weaning from the Oxycodone has been attempted.  Nurse Scheidler stated Marlowe has a chronic herniation at L4-L5 with bilateral foraminal stenosis greater on the right than the left, stemming from the 1994 work injury.  She also filed the May 4, 2016 record of the office visit noting Marlowe’s reported continued chronic daily low back pain.  Nurse Scheidler diagnosed Marlowe with chronic back pain, neuropathic pain and depressive disorder.

          A benefit review conference was held on August 10, 2016.  The only contested issue listed was a determination of the treatment with Oxycodone, 10/325 mg, and Zolpidem 5 mg.

          Marlowe testified at the hearing held September 1, 2016.  At the hearing, the ALJ initially stated the claim number was 2001-93698, and then corrected it to reflect the correct claim number as 1994-32554[1].  The parties acknowledged the only issues for consideration are the reasonableness and necessity of treatment with Oxycodone and Zolpidem.

          Marlowe is a resident of Fredonia, Kentucky.  She was born on October 28, 1958 and injured her back while working at Hardee’s in 1994 when she bent down to move a box of chicken.  She has continued to have problems with her back since that time.  Marlowe declined to undergo recommended surgery.  She worked for various employers after the injury sustained at Hardee’s but is no longer employed.  While working at Blockbuster, she tripped in a hole in the carpet which caused her to fall, injuring her neck and knees.  Despite the allegation in the Form 110 settlement agreement of injury to her back in the accident at Blockbuster, this was denied at the hearing.  Marlowe waived her right to future medical treatment for the injuries she sustained in the Blockbuster accident.

          Marlowe testified her treating physician is Dr. Marissa Jaynes, but she actually sees Nurse Scheidler who is a nurse practitioner, both of whom are in the same medical practice in Kuttawa, Kentucky.  Nurse Scheidler prescribes Percocet which is the trade name for Oxycodone.  She also prescribes Ambien which is the trade name for Zolpidem.  Marlowe testified treatment with these medications allows her to function during the day, and to sleep at night.  She has attempted physical therapy and epidural injections, neither of which was successful. 

          In the Medical Fee Opinion and Order rendered on October 31, 2016, the ALJ found as follows:

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).


In the specific instance, Defendant Employer has moved to reopen this claim to challenge the reasonableness and necessity of medications Oxycodone 10/325 mg and Zolpidem 5 mg.  After review of the evidence, it is determined that the opinion of Dr. Simolins is persuasive in that there is no record of objective functional gains with the pain medication and therefore the contested medications are found not reasonable and necessary for the cure and/or relief of the work injury and, therefore, they are to remain compensable for the purposes of weaning only.


          Marlowe filed a petition for reconsideration on November 14, 2016, arguing the ALJ erred in referencing an “objective functional gains” test.  She argues the contested medications are providing relief, and therefore should be found compensable.

          On December 9, 2016, the ALJ entered an order denying the petition for reconsideration.  He specifically held as follows:

This matter is before the ALJ upon the Motion of the Plaintiff seeking clarification of the finding that the medications at issue are not reasonable and necessary for the cure and relief of the Plaintiff's work injury. The following additional findings are hereby entered:


1. The ALJ finds that while the functional benefit test referred to by Dr. Smolins is not dispositive regarding the issue of reasoanableness[sic] and necessity, it is persuasive and constitutes a portion of the reasoning used to support the ultimate conclusion.


2. The ALJ further finds that Dr. Smolin[sic] was persuasive in his opinion that Zolpidem is recommended for short-term use of 7-10 days and should not be used for an injury that is 20 years old or for a constant three-year period of time.


3. Dr. Smolins was also persuasive in the opinion that the Plaintiff still has pain while taking four Oxycodone 10/325 milligram daily.  The ALJ finds that this point supports the lack of efficacy of this medication as argued by Dr. Smolins and finds based upon all of the reasoning offered by Dr. Smolins that the contested medications are no longer reasonable and necessary for the cure and relief of the work injury.


          In a post-award medical fee dispute, the burden of proof to determine the medical treatment is unreasonable or unnecessary is with the employer, while the burden remains with the claimant concerning questions pertaining to work-relatedness or causation of the condition.  See KRS 342.020; Mitee Enterprises vs. Yates, 865 S.W.2d 654 (Ky. 1993); Addington Resources, Inc. v. Perkins, 947 S.W.2d 421 (Ky. App. 1997); R.J. Corman Railroad Construction v. Haddix, 864 S.W.2d 915, 918 (Ky. 1993); and National Pizza Company vs. Curry, 802 S.W.2d 949 (Ky. App. 1991). 

          Here, the ALJ determined the contested medical treatment with Percocet and Zolpidem is not reasonable and necessary, and therefore not compensable.  The ALJ has the right and obligation to determine the compensability of medical treatment based upon the evidence presented.  Substantial evidence has been defined as some evidence of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable people.  See Smyzer v. B.F. Goodrich Chemical Co., 474 S.W.2d 367, 369 (Ky. 1971); Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).  In this instance, the ALJ’s determinations are supported by substantial evidence of record and will not be disturbed.

     As fact-finder, the ALJ has the sole authority to determine the quality, character, and substance of the evidence.  Square D Company v. Tipton, 862 S.W.2d 308 (Ky. 1993); Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985).  Similarly, the ALJ has the sole authority to judge the weight and inferences to be drawn from the evidence.  Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997); Luttrell v. Cardinal Aluminum Co., 909 S.W.2d 334 (Ky. App. 1995).  Where the evidence is conflicting, the ALJ may choose whom or what to believe.  Pruitt v. Bugg Brothers, 547 S.W.2d 123 (Ky. 1977).  The ALJ has the discretion and sole authority to reject any testimony and believe or disbelieve parts of the evidence, regardless of whether it comes from the same witness or the same party’s total proof.  Caudill v. Maloney's Discount Stores, 560 S.W.2d 15 (Ky. 1977); Magic Coal v. Fox, 19 S.W.3d 88 (Ky. 2000); Halls Hardwood Floor Co. v. Stapleton, 16 S.W.3d 327 (Ky. App. 2000).  Mere evidence contrary to the ALJ’s decision is not adequate to require reversal on appeal.  Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999). 

          Here, the ALJ properly considered the evidence of record and applied the correct analysis in reaching his determination.  The ALJ clearly explained the “functional benefit” reference used by Dr. Smolins was not dispositive of his determination, but was certainly a factor he considered in reaching his ultimate conclusion.  The ALJ provided an adequate analysis of the evidence he considered pertinent in arriving at his determination. 

          Because we determine substantial evidence supports the ALJ’s determination, and he provided an adequate analysis without abusing his discretion, we must affirm.  While Marlowe may be able to point to documentation contrary to this determination, a different decision is not compelled.  This merely constitutes evidence upon which the ALJ could have relied, but did not. 

          So long as the ALJ’s ruling with regard to an issue is supported by substantial evidence, it may not be disturbed on appeal.  Special Fund v. Francis, supra.  Marlowe essentially requests this Board to re-weigh the evidence, and substitute its opinion for that of the ALJ, which we cannot do.  Marlowe merely points to conflicting evidence supporting a more favorable outcome, which is not an adequate basis to reverse on appeal.  McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974).

          Accordingly, the October 31, 2016 Opinion and Order rendered by Hon. Jonathan Weatherby, Administrative Law Judge, and the order on reconsideration issued December 9, 2016 are hereby AFFIRMED.

          ALL CONCUR.






PO BOX 1737






PO BOX 995









[1] Although the ALJ entered an order on June 8, 2016 reflecting the correct claim reopened was 1994-32554, his subsequent orders including the decision and order on reconsideration continued to reflect 2001-93698.  The parties entered an agreed order which was approved on February 1, 2017 acknowledging the correct claim appealed from is 1994-32554.