Workers’
Compensation Board
OPINION
ENTERED: April 21, 2017
CLAIM NO. 199432554
PAMELA S. MARLOWE and
ELIZABETH SCHEIDLER, APRN PETITIONER
VS. APPEAL FROM HON. JONATHAN
R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE
HARDEE'S FOOD SYSTEMS INC.,
CRAWFORD & COMPANY, and
HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
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.
COUNSEL
FOR PETITIONER:
HON RODGER W LOFTON
PO BOX 1737
PADUCAH, KY 42002
COUNSEL
FOR RESPONDENT:
HON R CHRISTION HUTSON
PO BOX 995
PADUCAH, KY 42002
ADMINISTRATIVE
LAW JUDGE:
HON JONATHAN R WEATHERBY
PREVENTION PARK
657 CHAMBERLIN AVE
FRANKFORT, KY 40601
[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.