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January 15, 2016 201285818

Commonwealth of Kentucky 

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