Workers’
Compensation Board
OPINION ENTERED: April 21, 2017
CLAIM NO. 200671331
FORD MOTOR COMPANY, LAP PETITIONER
VS. APPEAL FROM HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE
JANET HITCHCOCK CRAFT
DR RODNEY CHOU
SOUTHWEST LABORATORY
AND HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Ford Motor Company, LAP
(“Ford”) appeals from the October 10, 2016 Opinion and Order rendered by Hon.
Jonathan R. Weatherby, Administrative Law Judge (“ALJ”). On appeal, Ford argues the ALJ erred in
awarding drug screening tests and in failing to make findings regarding the
type and cost of compensable testing. We
affirm.
Janet Hitchcock Craft (“Craft”) sustained a back injury on
September 7, 2006. She filed a workers’
compensation claim, which was resolved by Opinion and Award rendered March 29,
2010. On May 10, 2016, Ford filed a Form
112 and motion to reopen to contest the reasonableness and necessity of urine
drug screening obtained by Dr. Rodney Chou through Southwest Laboratory. It challenged the frequency, type, and cost of
the testing.
Ford submitted the April 15, 2016 Clinical Peer Report of
Dr. Charles Carnel. Dr. Carnel noted
Craft currently is taking Tramadol, Cyclobenzaprine, and Gabapentin. He opined she is at moderate risk of
substance abuse, and has exhibited no aberrant behavior. In Dr. Carnel’s
opinion, patients at moderate risk should undergo point-of-contact drug
screening two to three times a year, with confirmatory testing for
inappropriate or unexplained results. He
does not recommend quantitative urine drug testing for verifying compliance
without evidence of necessity. In
forming his opinions, Dr. Carnel referred to the Official Disability Guidelines (“ODG”).
In a brief May 12, 2016 letter, Dr. Chou stated urine drug
screening was required to comply with Kentucky House Bill 1. He noted Tramadol is a schedule IV controlled
substance, and that Craft is at moderate risk for opioid abuse. According to Dr. Chou, the ODG recommends
screening three to four times per year.
Dr. Chou’s opinion was further
explained at a deposition on July 11, 2016.
He began treating Craft in 2012 for back pain radiating into the left
leg. He prescribed Tramadol, a
controlled substance covered by House Bill 1.
Because Craft takes a controlled substance, he must see her a minimum of
every three months. Additionally, Dr.
Chou conducted a risk profile and determined Craft was at the high end of
moderate risk for abuse. Referring to
the ODG and an article in Pain Physician from 2012, Dr. Chou noted three to
four urine drug tests per year are appropriate for individuals at moderate risk
for abuse. Craft has been compliant on
all drug screens.
After reviewing the evidence, the ALJ found Dr. Chou’s
opinion persuasive and determined urine drug screening performed three to four
times per year is reasonable and necessary.
The ALJ concluded screening more frequently than suggested by Dr. Chou
is non-compensable.
Ford did not file a petition for reconsideration and
appealed directly to the Board. On appeal, Ford attacks the ALJ’s decision on
several grounds. First, it alleges
numerous errors in Dr. Chou’s opinion, such as his classification of Craft as a
“moderate risk” for drug abuse and his interpretation of the ODG. It also alleges the ALJ erred in finding
three to four screenings per year to be reasonable and necessary. Ford contends the ODG establishes that only
two to three screenings per year are reasonable for individuals at moderate
risk. It claims the type of tests should
be limited to an initial POC test with follow-up confirmatory or quantitative
testing if an inconsistent finding appears.
Ford argues the cost of the urine drug screen panels should be limited
to $160.00 per visit rather than the thousands of dollars billed for the
customized quantitative testing ordered by Dr. Chou. Ford asserts the ALJ erred in failing to
address the reasonableness of the cost of Southwest Laboratory’s bills. Finally, Ford argues allowing the arbitrary
testing costs and enhanced requirement for urine drug collection is against
public policy, as it is taxing to the workers’ compensation system.
We begin by noting Ford did not file a petition
for reconsideration and appealed directly to the Board. An ALJ must be afforded the opportunity
to make any corrections via petition for reconsideration. Pursuant to KRS 342.285, an award or order of the ALJ shall be
conclusive and binding as to all questions of fact if a petition for
reconsideration is not filed as provided for in KRS 342.281. Absent a petition for
reconsideration, questions of fact, including the adequacy
of the ALJ’s findings of fact, are not preserved for appellate review. Brasch-Barry
General Contractors v. Jones, 175 S.W.3d 81, 83 (Ky. 2005). See
also Hornback v. Hardin Memorial
Hospital, 411 S.W.3d 220, 223 (Ky. 2013).
Inadequate, incomplete, or even inaccurate fact-finding on the part of an ALJ will not justify reversal or remand if there is
substantial evidence in the record supporting the ultimate conclusion. Eaton Axle Corp. v. Nally, 688 S.W.2d 334 (Ky. 1985).
Because Ford did not
file a petition for reconsideration, we are without authority to address the
ALJ’s failure to make findings regarding the type and cost of the testing. Our review is limited to whether substantial
evidence supports the ALJ’s award of drug screening three to four times a
year. On this issue, the ALJ was faced
with conflicting evidence. Dr. Carnel and Dr. Chou agreed Craft is at moderate risk for
abuse. Dr. Carnel
indicated two to three tests per year would be reasonable and necessary
pursuant to the ODG. Dr. Chou, also
citing the ODG, stated three to four tests per year is reasonable and
necessary.
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 enjoys 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. Magic Coal v. Fox, 19
S.W.3d 88 (Ky. 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). While Ford has identified evidence
supporting a different conclusion, there is substantial evidence to the
contrary. As such, the ALJ acted within
his discretion to determine which evidence to rely upon, and it cannot be said
the ALJ’s conclusion is so unreasonable as to compel a different result. Ira A. Watson Department Store v. Hamilton,
34 S.W.3d 48 (Ky. 2000). Because we determine the ALJ’s decision regarding the frequency of
testing is supported by substantial evidence, and further because Ford failed
to file a petition for reconsideration, the Opinion and Order must be affirmed.
While Ford challenges
the ALJ’s decision on several grounds, it seems the crux of its argument is
that Dr. Chou’s recommendation of three to four drug screens a year is not
based on medical necessity, but on his “concern about being arrested or
sued.” Dr. Chou was cross-examined
extensively about the basis of his opinion, and the constraints he experiences
as a pain medicine physician when he prescribes controlled substances. We have reviewed Dr. Chou’s testimony, and
disagree with Ford’s characterization of it.
It is clear Dr. Chou’s recommendation as to drug screening is based on
his consideration of her particular risk factors and history, existing
community risks, and existing law. He
explained the method by which he assesses a patient’s risks, and the reasons
why he orders custom screening panels.
Dr. Chou’s testimony constitutes substantial evidence supporting the
opinion. To the extent Ford’s arguments
address public policy concerns, such as the cost of the drug screening, these
issues are reserved for the General Assembly.
Accordingly, the October 10, 2016 Medical Fee Opinion and Order rendered by Hon. Jonathan R. Weatherby, Administrative Law Judge, is hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON ELIZABETH HAHN
401 SOUTH FOURTH ST
SUITE 2200
LOUISVILLE, KY 40202
COUNSEL
FOR RESPONDENT:
HON CHED JENNINGS
401 W MAIN ST #1910
LOUISVILLE, KY 40202
MEDICAL
PROVIDER, RESPONDENT:
SOUTHWEST LABORATORY
4225 OFFICE PKWY
DALLAS, TX 75204
MEDICAL
PROVIDER, RESPONDENT:
DR RODNEY CHOU
1170 E BROADWAY #100
LOUISVILLE, KY 40204
ADMINISTRATIVE
LAW JUDGE:
HON JONATHAN R WEATHERBY
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601