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September 8, 2017 201466966

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  September 8, 2017

 

 

CLAIM NO. 201466966

 

 

ITT TECHNICAL INSTITUTE                        PETITIONER

 

 

 

VS.        APPEAL FROM HON. JANE RICE WILLIAMS,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

ROSE HALL,

DR. MLADEN DJURASOVIC,

DR. CHRISTOPHER DAVID, and

HON. JANE RICE WILLIAMS,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING & REMANDING

 

                       * * * * * *

 

 

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

 

ALVEY, Chairman.  ITT Technical Institute (“ITT”) appeals from the Opinion and Order rendered on April 4, 2017 by Hon. Jane Rice Williams, Administrative Law Judge (“ALJ”).  The ALJ found compensable Rose M. Hall’s (“Hall”) treatment with Dr. Mladen Djurasovic, M.D. and Dr. Christopher David, D.C. for injuries stemming from a trip and fall accident she sustained on September 22, 2014 while working for ITT.  ITT also appeals from the May 11, 2017 order denying its petition for reconsideration.

          On appeal, ITT argues the ALJ’s finding the testing recommended by Dr. Djurasovic is work-related is not supported by substantial evidence.   Likewise, ITT argues the ALJ’s finding that the treatment recommended by Dr. David is work-related is not supported by substantial evidence.  ITT argues the evidence compels a finding that the treatment rendered by Drs. Djurasovic and David is not compensable.  ITT also argues the holding in Kingery v. Sumitomo Elec. Wiring, 481 S.W.3d 492 (Ky. 2015) is controlling, and the ALJ’s finding of compensability should be reversed.  Because the ALJ’s decision is supported by substantial evidence, she did not err as a matter of law, and no contrary result is compelled, we affirm. 

          Hall filed a Form 101 on December 23, 2014, alleging she sustained injures to her back, left leg, left foot, neck, both wrists and head (including loss of consciousness), when she tripped and fell down steps at work on September 22, 2014.   A Form 110 settlement agreement was approved by Hon. R. Roland Case, Administrative Law Judge on July 27, 2015.  The settlement agreement reflects ITT paid $10,603.83 to Hall for a waiver of any claim she may have for income benefits, inclusive of temporary total disability benefits and permanent partial disability benefits.  Hall also received $1,000.00 for a waiver of entitlement to vocational rehabilitation benefits, and $3,000.00 for a waiver of her right to reopen, except that she retained the right to future medical treatment.

          On February 26, 2016, ITT filed a motion to reopen to challenge a sacroiliac joint injection requested by Dr. Harry Lockstadt.  ITT also filed a Form 112 medical dispute, and a motion to join Dr. Lockstadt as a party.  The claim was assigned to the ALJ for a determination of the medical dispute by order dated March 17, 2016.

          In support of its motion, ITT filed the utilization review report of Dr. Terry Troutt who stated the requested procedure was unnecessary.  ITT later submitted the utilization review report of Dr. David Trotter who agreed with Dr. Troutt, and stated the request was not supported by the Official Disability Guidelines (“ODG”), and the Kentucky Clinical Practice Parameters.  Hall submitted Dr. Lockstadt’s record/report dated January 20, 2016, amended March 14, 2016, which outlined why he determined the requested treatment was reasonable, necessary and work-related. 

          Before the ALJ decided the medical dispute, ITT filed an additional medical dispute regarding treatment by Dr. David on May 23, 2016.  ITT also filed a motion to join Dr. David as a party.  ITT supported the medical dispute with the April 19, 2016 utilization review report of Dr. Kevin Anderson, D.C. who stated, “The clinical information provided does not establish medical necessity of proposed treatment.”  He opined the eight additional chiropractic treatments recommended were not supported by the ODG. 

          While the determination regarding Dr. Lockstadt’s contested treatment request was pending, ITT also filed a medical dispute challenging the L5-S1 CT-scan recommended by Dr. Djurasovic.  ITT also filed a motion to join Dr. Djurasovic as a party.  In support of this challenge, ITT submitted the utilization review report of Dr. Glenn Babus, D.O., who stated the requested lumbar MRI[1] is not supported by the ODG.

          Regarding the treatment requested by Dr. Lockstadt, the ALJ issued a decision on August 22, 2016 finding as follows:

After careful consideration of the evidence, the opinion of Dr. Trotter is not persuasive, and is of limited value as it is reliant on the ODG, not followed in Kentucky.  Dr. Lockstadt provides a well stated office record and is persuasive that the treatment is the best next step related to treatment of the work injury.  The contested treatment is compensable.

 

          The parties continued to submit evidence related to the two additional medical disputes filed by ITT.  Hall submitted Dr. Djurasovic’s October 7, 2016 report/response to a questionnaire submitted by her counsel.  Dr. Djurasovic stated he was treating Hall’s low back pain and radicular pain due to a degenerative disk at L5-S1.  In response to the question, “Is the diagnostic testing you have recommended (Lumbar CT Scan) reasonable and necessary for treatment of Ms. Hall’s work-related injury?”  He checked the “yes” block.  He additionally stated the requested testing was necessary for a determination of whether to perform an anterior body fusion.  ITT did not depose or cross-examine Dr. Djurasovic.

          Hall also filed the report/response to a questionnaire submitted to Dr. David by Hall’s counsel.  Dr. David stated Hall’s primary diagnosis is low back pain with sciatica.  In response to the question, “Is the treatment you have provided/one recommending (additional eight chiropractic visits – two times a week for four weeks) reasonable and necessary for treatment of Ms. Hall’s work-related injury?”  He checked the “yes” block on the form.  Again, ITT neither deposed nor cross-examined Dr. David.

          ITT filed Dr. Ellen Ballard’s records review report dated December 5, 2016.  Dr. Ballard stated there is no indication additional chiropractic treatment is medically reasonable or necessary.  She also stated Hall’s reported pain in the right thigh is not due to the work-related injury.  She saw no reason for another film, whether it be a CT-Scan or an MRI.  Likewise, she found additional chiropractic treatment or testing is not reasonable or necessary. 

          The ALJ issued an order on March 5, 2017, which stated the issues remaining to be decided were the reasonableness, necessity and work-relatedness of the treatment/testing recommendations by Drs. David and Djurasovic.  The hearing was waived, and the dispute was submitted on the record for decision.  On March 8, 2017, the ALJ issued an order joining Drs. David and Djurasovic as parties. 

          In the Opinion and Order issued on April 4, 2017, the ALJ found as follows:

A telephonic Benefit Review Conference was held on March 6, 2017. Plaintiff and Defendant Employer participated. The final hearing was waived and the Medical Dispute was submitted on the record for a decision.

 

Defendant Employer introduced the May 3, 2016 report of Glenn Babus, DO, who conducted a review of records with and determine the request for a CT the lumbar spine was not medically necessary. He noted the ODG did not support the request. The April 29, 2016 treatment note reported constant back pain since falling downstairs in 2014. No treatment had been of benefit including physical therapy, chiropractic treatment and several epidural injections. Plaintiff still reported constant pain, numbness and tingling. However, straight leg raising was negative as was other testing. He found no neurologic deficits to indicate a need for the testing.

 

Defendant Employer introduced the April 19, 2016 report of Kevin Anderson, DC, who also reviewed medical records and determine[sic] the request for eight additional chiropractic visits should not be approved as thus far, ongoing chiropractic treatment had provided no benefit pursuant to the record. As there had been no sign of improvement, he found additional visits were not warranted.

 

Defendant Employer introduced the December 5, 2016 report of Ellen Ballard, M.D., who conducted a review of records and noted the September 22, 2014 work injury from the slip and fall. Plaintiff reported injury to her back, left leg, bilateral wrists, neck and head. Dr. Ballard provided a thorough summary of the records she reviewed. She found no indication for additional chiropractic treatment. Originally, her treatment had been for low back pain. Subsequent treatment documented pain in the anterior right thigh. This would not be due to the work injury according to Dr. Ballard, but would they[sic] the result of pre-existing degenerative changes documented in 2011. Additionally, Dr. Ballard found the record did not document improvement from prior chiropractic treatment and determined additional treatment would not be warranted. Dr. Ballard noted the CT scan in 2011 as compared to a follow-up in 2014 showing no evidence of change. Therefore, she found no reason for the additional scan.

 

Plaintiff introduced the September 29, 2016 report from Dr. David which is only partially legible. He stated that the treatment for low back pain related to the work injury and is recommended. Up to this point, her daily notes showed improvement of her leg pain with the ongoing treatment.

 

Plaintiff introduced the October 7, 2016 report of Dr. Djurasovic who diagnosed lower back pain with radicular pain due to degenerative disc disease. He stated a CAT scan to assess her degree a facet arthritis is related to her work injury and is needed to determine if she had arthritis and other levels of the lumbar spine. Depending on the level of the arthritis, a fusion may be recommended.

 

In a post-judgment Motion to Reopen to Assert a Medical 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 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 challenging the work relatedness, reasonableness and necessity of eight additional chiropractic sessions and a lumbar CT scan. After careful consideration of the evidence, the opinion of Dr. Ballard, while well reasoned, is not persuasive in that the treating physicians have both provided adequate explanations and opinions. Dr. David and Dr. Djurasovic both state the treatment is the result of the work injury and both believe the contested procedures are reasonable and necessary. Therefore, the contested treatment is compensable.

 

AUTHORITIES

 

KRS 342.020

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)

National Pizza Company vs. Curry, 802 SW2d 949 (KY 1991)

 

ORDER

 

IT IS HEREBY ORDERED AND ADJUGED[sic] AS FOLLOWS:

 

The Motion to Reopen filed by Defendant Employer, ITT Technical Support, and/or its insurance carrier, to assert a Medical Dispute challenging the work relatedness, reasonableness and necessity of eight additional chiropractic sessions and a lumbar CT scan, shall be, and the same is hereby resolved in favor of Plaintiff. The disputed expenses are found compensable.

 

           ITT filed a petition for reconsideration arguing the ALJ erred in finding the contested treatment/testing requested by Drs. David and Djurasovic compensable.  It argued neither doctor offered an opinion such treatment/testing is work-related or provided an adequate explanation for their opinions.  It requested additional fact-finding from the ALJ to provide for a meaningful review pursuant to Shields v. Pittsburgh & Midway Mining Co., 634 S.W.2d 440 (Ky. 1982).

          In her order denying the petition for reconsideration issued May 11, 2017, the ALJ found as follows:

This matter comes before the undersigned administrative law judge (ALJ) pursuant to the Petition for Reconsideration filed by counsel for Defendant Employer, of the Opinion and Award rendered April 4, 2017. After review of the Opinion, the Petition for Reconsideration and the Response of Plaintiff, the Petition is found to be without merit. It states:

This ALJ found both Drs. Djurasovic and David opined the treatment was work-related. However, neither actually did. Rather, they both checked "yes" to the following question: "Is the treatment you have provided/ are recommending reasonable and necessary for treatment of Ms. Hall’s work-related injury?" The question asks whether the treatment is reasonable and necessary, not whether the treatment was for the effects of the work-related injury.

 

This statement clearly provides the medical opinion of work relatedness and states so in black and white and in no uncertain terms.

 

IT IS HEREBY ORDERED the Petition for Reconsideration is found to be completely without merit and OVERRULED.

 

          We note the ALJ’s determination regarding the treatment recommended by Dr. Lockstadt was not appealed, and will not be discussed further.  We also note ITT filed additional medical disputes subsequent to filing its Notice of Appeal.

          Regarding the ALJ’s determination of compensability of the treatment/testing requested by Drs. Djurasovic and David, we note that notwithstanding the holding in C & T Hazard v. Chantella Stollings, et al., 2012-SC-000834-WC, 2013 WL 5777066 (Ky. 2013), an unpublished case from the Kentucky Supreme Court, a long line of reported decisions establishes in a post-award medical fee dispute, the employer bears both the burden of going forward and the burden of proving entitlement to the relief sought, except that the claimant bears the burden of proving work-relatedness. National Pizza Company vs. Curry, 802 S.W.2d 949 (Ky. 1991); Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979); Addington Resources, Inc. v. Perkins, 947 S.W.2d 421 (Ky. App. 1997); Mitee Enterprises vs. Yates, 865 S.W.2d 654 (Ky. 1993); Square D Company v. Tipton, 862 S.W.2d 308 (Ky. 1993). 

          Since ITT bore the burden of proving the contested treatment is neither reasonable nor necessary, the question on appeal is whether the evidence compels a different result. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). “Compelling evidence” is defined as evidence that is so overwhelming no reasonable person could reach the same conclusion as the ALJ. REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky. App. 1985).  The function of the Board in reviewing the ALJ’s decision is limited to a determination of whether the findings made by the ALJ are so unreasonable under the evidence that they must be reversed as a matter of law. Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).

          As fact-finder, the ALJ has the sole authority to determine the weight, credibility and substance of the evidence. Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). Similarly, the ALJ has the discretion to determine all reasonable inferences to be drawn from the evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997); Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979).  The ALJ may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same adversary party’s total proof. Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000).  Although a party may note evidence that would have supported a different outcome than that reached by an ALJ, such proof is not an adequate basis to reverse on appeal. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974).  The Board, as an appellate tribunal, may not usurp the ALJ’s role as fact-finder by superimposing its own appraisals as to the weight and credibility to be afforded the evidence or by noting reasonable inferences that otherwise could have been drawn from the record. Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999).  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, 708 S.W.2d 641, 643 (Ky. 1986).

          In this instance, the ALJ determined treatment recommended by Dr. David, and testing recommended by Dr. Djurasovic is reasonable and necessary.  She cited her reasons for doing so.  She also determined the reports/statements from these physicians establish the contested treatment/ testing is causally related to the work-related injury, and provided her basis for doing so.  While the multiple contrary opinions from Drs. Ballard, Babus and Anderson could support a determination by the ALJ in ITT’s favor, they do not compel a contrary result.

          ITT essentially requests this Board to re-weigh the evidence, and substitute its opinion for that of the ALJ, which we cannot do.  Whittaker v. Rowland, supra.  It was the ALJ’s prerogative to rely upon the opinions of Drs. David and Djurasovic.  ITT 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., supra.

          ITT additionally argues the ALJ failed to provide sufficient findings for her determination.  While authority generally establishes an ALJ must effectively set forth adequate findings of fact from the evidence in order to apprise the parties of the basis for his decision, she is not required to recount the record with line-by-line specificity nor engage in a detailed explanation of the minutia of his reasoning in reaching a particular result.  Shields v. Pittsburgh and Midway Coal Mining Co., supra; Big Sandy Community Action Program v. Chaffins, 502 S.W.2d 526 (Ky. 1973).  The ALJ’s analysis of the evidence in this claim was sufficient to support her determination.  Likewise, we do not believe the ALJ abused her discretion or committed reversible error.  The ALJ’s decision is supported by the record, and therefore we affirm.

          Finally, the holding in Kingery v. Sumitomo Elec. Wiring, supra, is not controlling.  In that case, Ms. Kingery provided no evidence establishing the disputed medical treatment was causally related to her work injury.  Here, as noted by the ALJ, both Drs. David and Djurasovic clearly checked the blocks on the forms they signed which indicated the treatment/testing was reasonable, necessary and due to the work-related injuries she sustained.  As noted above, neither provider was cross-examined by ITT.  We find the ALJ provided an adequate interpretation of these statements, and she could reasonably rely upon them in reaching her determination.

          Accordingly, the Opinion and Order rendered by Hon. Jane Rice Williams, Administrative Law Judge, on April 4, 2017, and the order on reconsideration issued on May 11, 2017, are hereby AFFIRMED.  This claim is REMANDED to the ALJ to resolve any outstanding medical dispute filed subsequent to the determinations which are subject of this appeal. 

          ALL CONCUR.

 

 


 

COUNSEL FOR PETITIONER:

 

HON KYLE L JOHNSON

610 SOUTH 4TH ST, STE 701

LOUISVILLE, KY 40202

 

COUNSEL FOR RESPONDENT ROSE HALL:

 

HON CHRISTOPHER P EVENSEN

6011 BROWNSBORO PARK BLVD, STE A

LOUISVILLE, KY 40207

 

RESPONDENTS:

 

DR MLADEN DJURASOVIC

210 EAST GRAY ST, STE 900

LOUISVILLE, KY 40202

 

DR CHRISTOPHER DAVID

10131 TAYLORSVILLE ROAD

LOUISVILLE, KY 40299

 

ADMINISTRATIVE LAW JUDGE:

 

HON JANE RICE WILLIAMS

657 CHAMBERLIN AVE

FRANKFORT, KY 40601

 



[1] While the request was for an L5-S1 CT-scan, Dr. Babus opined an MRI was unnecessary.