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April 28, 2017 200684714

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  April 28, 2017

 

 

CLAIM NO. 200684714

 

 

UNITED PARCEL SERVICE, INC.                    PETITIONER

 

 

 

VS.       APPEAL FROM HON. JONATHAN R. WEATHERBY,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

TRACY TRENAMAN,

RODNEY CHOU, M.D., and

HON. JONATHAN R. WEATHERBY,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

VACATING & REMANDING

 

                       * * * * * *

 

 

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

 

ALVEY, Chairman.   United Parcel Service (“UPS”) appeals 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 Tracy Trenaman (“Trenaman”).   UPS also appeals from the January 18, 2017 order denying its petition for reconsideration. 

          On appeal, UPS argues the ALJ failed to cite to the February 15, 2016 report of Dr. Woodley B. Mardy-Davis in determining the contested Lidocaine patches are compensable.  UPS argues the ALJ erred in finding the contested compound cream effective in controlling Trenaman’s pain since the evidence does not show he has actually used it.  UPS also argues the opinions of Dr. Terry Troutt are more persuasive than those of Dr. Rodney Chou.  We vacate and remand for a determination based upon a complete consideration and a correct understanding of the evidence submitted by the parties.    

          UPS filed a settlement agreement which was approved by Hon. Grant S. Roark, Administrative Law Judge on June 1, 2009.  The agreement indicated Trenaman injured his neck on May 10, 2006.  Dr. Wayne Villanueva performed an anterior fusion discectomy and arthrodesis at C5-6 on June 29, 2006.  The agreement indicates three physicians each assessed a 27% impairment rating, including Drs. Villanueva and Chou.  Trenaman did not waive his right to future medical benefits. 

          UPS filed a motion to reopen, Form 112 medical fee dispute and motion to join Dr. Chou on November 20, 2015.  UPS challenged the compensability of a compound cream (consisting of cyclobenzene, pentoxifylline, diclofenac, baclofen, bupivacaine, ibuprofen, emulsion liquid, gabapentin, and ethoxy liquid) for treatment of the May 10, 2006 work injury recommended by Trenaman’s treating physician, Dr. Chou.  In support of its dispute, UPS filed Dr. Troutt’s November 6, 2015 utilization review report.  After reviewing the July 29, 2014, January 13, 2015 and July 23, 2015 treatment notes from Dr. Chou, Dr. Troutt concluded the compound cream is neither reasonable nor medically necessary pursuant to the Official Disability Guidelines (“ODG”) Pain (Chronic) Chapter.  Referencing the ODG, Dr. Troutt explained topical analgesics are largely experimental and primarily recommended for neuropathic pain when trials of antidepressants and anticonvulsants have failed.  Dr. Troutt also stated the contested compound cream contains ingredients that are not supported by ODG criteria. 

          In an order dated January 4, 2016, the ALJ found UPS made a prima facie showing for reopening, joined Dr. Chou as a party, and scheduled a telephonic conference. 

          Subsequently, UPS filed a supplemental medical fee dispute on February 23, 2016 contesting the prescriptions of Lyrica, Lidocaine patch and Metaxalone[1] requested by Dr. Chou.  In support of the supplemental dispute, UPS attached the January 14, 2016 treatment note of Dr. Chou.  He noted Trenaman reports he is doing well with Lyrica and Skelaxin, and specifically Lyrica lessens his pain to a tolerable level.  The treatment note indicates he attended physical therapy in 2013 and 2014, and he has been prescribed Lyrica, Skelaxin and Lidoderm since at least January 2015.  Dr. Chou noted epidural steroid injections and the compound cream had been denied.  He diagnosed Trenaman with pain in limb and cervical post-laminectomy syndrome, and recommended continuing his medication regimen consisting of Lyrica, Skelaxin, and Lidoderm patches. 

          UPS also filed the February 15, 2016 peer review report of Dr. Mardy-Davis.  Pursuant to the ODG, he concluded neither the request for Lyrica, Metaxalone nor Lidocaine patches are medically necessary.  Subsequently, UPS filed a motion to withdraw its challenge to the prescriptions for Skelaxin and Lyrica, but not the Lidocaine patches based upon the August 1, 2016 report of Dr. Glenn Babus. 

          Trenaman filed an October 20, 2015 letter prepared by Dr. Chou which states as follows:

 . . . . We did prescribe compounded cream for Mr. Trenaman.  I do believe that cervical epidurals were ordered before and those were denied.  I do believe that if the cervical epidurals could be done as well as some physical therapy then the patient would probably not need the compounded cream.  Without having the option of doing interventional therapy, we were forced to use other means, which was the compounded cream.  I think the combination of the physical therapy and interventional injections would be helpful to get this patient back to baseline.  This treatment is both reasonable and necessary and it is causally related to the work injury of May 10, 2006 for diagnosis, of pain in limb M79.609 & Cervical post-laminectomy syndrome M96.1.

 

     Trenaman also filed a July 14, 2016 letter prepared by Autumn Allgeier, APRN, (“Nurse Allgeier”), who works in the same practice as Dr. Chou.  Nurse Allgeier stated Trenaman requires the prescriptions of Lidoderm patches, Lyrica, and Skelaxin as a result of the May 10, 2006 work injury.  She noted Trenaman did not get adequate relief from his surgery and requires ongoing medication for function with his activities of daily living.  Nurse Allgeier noted the medications could possibly be decreased with treatments such as cervical epidural injections or the use of a compounded cream, which have been denied.  Therefore, Trenaman continues to need the Lidoderm patches, Lyrica, and Skelaxin for the treatment of his chronic pain caused by the work injury.

          A telephonic benefit review conference was held on August 31, 2016.  The parties stipulated Trenaman had a work- related injury on May 10, 2006 and the settlement agreement was approved on June 1, 2009.  The parties identified the contested issues as the reasonableness and necessity of Lidocaine and compound cream.  The ALJ noted the parties waived a formal hearing.  

          The ALJ summarized the letters prepared by Dr. Chou and Nurse Allgeier, and the opinion of Dr. Troutt.  He did not mention the reports of Drs. Mardy-Davis or Babus.  In resolving the medical fee dispute in favor of Trenaman, the ALJ stated 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 Lidocaine and compound cream.  After review of the evidence, it is determined that the opinion of Dr. Chou is persuasive in that the contested medications are effective in controlling his pain and are therefore reasonable and necessary for the cure and/or relief of the work injury and, therefore, are compensable.

 

          UPS filed a petition for reconsideration alleging several errors related to the compensability of the compound cream only.  UPS alleged the ALJ’s statement the contested treatment, “are effective in controlling his pain” is erroneous since the compound cream has yet to be administered and there is no proof as to its effectiveness.  UPS also alleged Dr. Chou has not requested physical therapy since November 2013, and there are no records demonstrating he requested injections in conjunction with physical therapy.  Finally, UPS alleges the compound cream is beyond the type of treatment accepted by the medical profession as reasonable treatment of Trenaman’s low back condition.  

          In an order dated January 18, 2017, the ALJ denied the petition since UPS sought “a redetermination of the reliance upon the opinions of the treating physician, Dr. Chou.”

          On appeal, UPS argues the opinion and order on reconsideration fail to cite the February 15, 2016 report of Dr. Mardy-Davis, which addresses the compensability of the Lidocaine patches. 

     UPS argues the ALJ erred in finding the compound cream is effective in controlling Trenaman’s pain since the evidence does not show it has been administered to him, or that it is effective in controlling anyone’s pain.  UPS also argues, as it did in its petition for reconsideration, that Dr. Chou has not requested physical therapy since 2013 and there is no evidence demonstrating he requested the injections in conjunction with physical therapy.  UPS argues pursuant to Dr. Troutt’s opinion, the compound cream is beyond the type of treatment accepted by the medical profession as reasonable treatment of Trenaman’s low back condition.  Therefore, UPS argues the Lidocaine patches and compound cream should have been found non-compensable.      

          We first note, in a post-award medical dispute, the burden of proof to determine whether 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). 

          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). 

          The ALJ has the 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). 

          That said, all parties to a workers’ compensation dispute are entitled to findings of fact based upon a correct understanding of the evidence submitted during the litigation of the claim, and based upon a correct procedural history.  Where it is demonstrated the fact-finder may have held an erroneous understanding of the facts pertinent to a decision, the Courts have authorized remand to the ALJ for further findings.  See Cook v. Paducah Recapping Service, 694 S.W.2d 684 (Ky. 1985); Whitaker v. Peabody Coal Company, 788 S.W.2d 269 (Ky. 1990).

           After reviewing the entirety of the evidence, we do not believe the ALJ correctly understood the evidence when he found Dr. Chou’s opinion most persuasive, “in that the contested medications are effective in controlling his pain and are therefore reasonable and necessary for the cure and/or relief of the work injury and, therefore, are compensable.”  With regard to the compound cream, there is no indication in the January 14, 2016 treatment note or the letters prepared by Dr. Chou and Nurse Allgeier that Trenaman had ever used the recommended compound cream, or that it is “effective in controlling his pain.”  The treatment note only indicates the recommended compound cream was denied.  In the October 20, 2015 letter, Dr. Chou explained he prescribed the compound cream because the cervical epidural injections were denied.  He further explained if the cervical epidural injections could be administered, as well as some physical therapy, Trenaman probably would not need the compound cream.  He then opined the compound cream is reasonable, necessary and causally related to the May 10, 2006 work injury.  Dr. Chou did not discuss the compound cream’s effectiveness in controlling Trenaman’s pain.  The letter prepared by Nurse Allgeier only addressed the necessity of the prescriptions of the Lidoderm patches, Lyrica, and Skelaxin as a result of the May 10, 2006 work injury.  Based upon the evidence cited by the ALJ, there is no indication as to the compound cream’s effectiveness in controlling Trenaman’s pain, particularly since it appears he has yet to use it.

          It is additionally unclear whether the ALJ considered the opinions of Drs. Mardy-Davis or Babus regarding the compensability of the Lidocaine patches.  The ALJ did not mention either opinion in his summary of evidence or findings of facts. 

          As noted above, the ALJ’s decision must be based upon the appropriate standard, and in accordance with the evidence and the facts of the case.  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.  However, any determination must be based upon accurate facts and the appropriate history.  On remand, the ALJ must make a determination based upon the complete and correct evidence, and the history of the claim.

          In this instance, it is unclear whether the ALJ considered the opinions of Drs. Babus and Mardy-Davis in making his determination regarding the compensability of the Lidocaine patches.  In addition, in determining the compound cream is reasonable and necessary for the cure and/or relief of the work injury, the ALJ specifically based his conclusion on Dr. Chou’s opinion, “in that the contested medications are effective in controlling his pain . . . .”  Based upon the ALJ’s analysis, it is unclear whether he recognized there is no evidence of the compound cream’s effectiveness “in controlling his pain,” particularly since the evidence does not demonstrate he has actually used it. 

          Accordingly, the October 31, 2016 Medical Fee Opinion and Order, and the January 18, 2017 Order on petition for reconsideration by Hon. Jonathan R. Weatherby, Administrative Law Judge, are hereby VACATED and this claim is REMANDED for an additional determination in accordance with the direction set forth above.

          ALL CONCUR.

 

COUNSEL FOR PETITIONER:

 

HON CHRISTOPHER G NEWELL

10503 TIMBERWOOD CIRCLE, STE 112

LOUISVILLE, KY 40223

 

COUNSEL FOR RESPONDENT:

 

HON WAYNE C DAUB

600 WEST MAIN ST, STE 300

LOUISVILLE, KY 40202

 

RESPONDENT:

 

RODNEY CHOU, MD

1170 EAST BROADWAY, STE 100

LOUISVILLE, KY 40204

 

ADMINISTRATIVE LAW JUDGE:

 

HON JONATHAN R WEATHERBY

PREVENTION PARK  

657 CHAMBERLIN AVE

FRANKFORT, KY 40601

 

 



[1] Lidocaine is the generic of Lidoderm and Metaxalone is the generic of Skelaxin.