September 15, 2017 200593747

Commonwealth of Kentucky 

Workers’ Compensation Board




OPINION ENTERED: September 15, 2017



CLAIM NO. 200593747



DORSE SULLIVAN                                 PETITIONER




















                       * * * * * *



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


STIVERS, Member. Dorse Sullivan (“Sullivan”) seeks review of the April 21, 2017, Opinion and Order of Hon. Chris Davis, Administrative Law Judge (“ALJ”) resolving a medical fee dispute filed by James River Coal Company (“James River”) relating to various medical procedures and prescription medications.  The ALJ determined three opioids, Methadone, Oxycodone, and Tramadol, along with Omeprazole and Mexiletene were non-compensable.  The ALJ also determined lumbar facet rhizotomies, ischial bursa injections, implantation of a spinal cord stimulator, and an intrathecal pain pump were non-compensable.  However, the ALJ found Lamictal, Gabapentin, Dantrolene, and Nortriptyline were work-related, reasonable, and necessary treatment and, therefore, compensable.  Sullivan also appeals from the April 5, 2016, Order overruling his petition for reconsideration.

          On appeal, Sullivan contends the ALJ erred in finding the opioids, lumbar facet rhizotomies, and ischial bursa injections non-compensable. 

          The record contains a Form 110, Agreement as to Compensation and Order Approving Settlement, approved by Hon. Shelia Lowther, Administrative Law Judge on October 30, 2017.  The Form 110 reveals Sullivan was injured on February 16, 2005, when he was “struck on the head and back by falling rock.”  Only one impairment rating, 62% assessed by Dr. Susan McDowell, was listed in the agreement.  The noted diagnosis is: “T11-12 fracture dislocation with resultant spinal cord injury, paraplegia, reactive depression, neurogenic bowel/bladder, neuralgia, spasticity, chronic back pain, sexual dysfunction and infertility.”  Pursuant to the settlement agreement, Sullivan received temporary total disability (“TTD”) benefits from February 17, 2005, through November 6, 2007.  Thereafter, Sullivan receives, pursuant to an annuity contract purchased by James River, $2,200.00 per month for 398 guaranteed payments extending until Sullivan reaches the age of 67 on December 7, 2040.  As part of the settlement agreement, Sullivan waived his right to vocational rehabilitation benefits and to reopen seeking additional income benefits.  James River agreed to remain responsible for all reasonable and necessary medical expenses.  

          On September 21, 2015, James River filed a motion to reopen, a Form 112 medical fee dispute, and motion to join Dr. McDowell and Cardinal Hill as parties to the dispute. 

          Relying upon the report of Dr. Leon Ensalada, James River contended the narcotic medication Sullivan was taking “poses a clear and present danger to [Sullivan’s] life,” and are not reasonable and necessary treatment of the work injury. 

          On October 14, 2015, James River filed an amended medical fee dispute based upon the opinions of Dr. Ensalada contesting the reasonableness and necessity of bilateral lumbar facet rhizotomies and ischial bursa injections.  James River attached Dr. Ensalada’s September 15, 2015, report to the amended Form 112.  On that same date, James River filed the July 30, 2015, report of Dr. Ensalada, referenced in its motion to reopen and the Form 112, which also addressed the reasonableness and necessity of the non-opioid medications prescribed by Dr. McDowell.       

          By Order dated October 21, 2015, Hon. William J. Rudloff, Administrative Law Judge (“ALJ Rudloff”), sustained James River’s motion to reopen.  ALJ Rudloff also joined Dr. McDowell and Cardinal Hill as parties.  The claim was subsequently reassigned to the ALJ.

          On January 14, 2016, Sullivan filed the November 11, 2015, report of Dr. McDowell with the University of Kentucky Department of Physical Medicine and Rehabilitation. 

          On April 5, 2016, the ALJ entered the following order:

     This matter having come before the Administrative Law Judge following a scheduled telephonic benefit review conference with the parties the matter stands submitted as of the date entered below on the issue of the resonableness and necessity and workrelatedness of Tramadol, Cialis, Dantrolene, Gabapentin, Lamictal, Diclofenac, Omeprazole, Methadone, Mexiletene, Nortriptyline, Oxycodone, Lidoderm bilateral lumbar facet rhizotomies and ischial bursa injections.    

          On April 27, 2016, the ALJ entered the following order:

     This matter comes before the Administrative Law Judge following a telephonic status conference with the parties and upon Joint Oral Motion of the Parties. This is a complex medical fee dispute involving a man with a very serious work-related injury who also takes an undisputedly high volume of medications. In order to provide this claim with the most thorough possible proof and evidence the parties desire the claim to be removed from submission. As such the Motion is SUSTAINED. The matter is removed from submission and the parties are granted an extension of proof time. Either party may move to set a TBRC when appropriate.

          On June 17, 2016, James River filed the June 8, 2016, report of Dr. Timothy Kriss addressing the reasonableness and necessity of the medications and procedures in question. 

          On June 27, 2016, James River filed a motion to join Dr. Louis Vascello as a party and a Form 112 contesting his recommendation for a spinal cord stimulator and a psychological evaluation prior to implantation of the spinal cord stimulator.  Attached to the Form 112 is the report of Dr. William Baumgartl addressing the reasonableness and necessity of the implantation of a spinal cord stimulator and the psychological evaluation. 

          On July 25, 2016, the ALJ entered an order joining Dr. Vascello as a party to the proceedings.

          Sullivan filed the December 14, 2016, report of Dr. McDowell which responded to the opinions expressed by Dr. Kriss. 

          The ALJ conducted a hearing on February 22, 2017.  At the hearing, the ALJ stated as follows:

Judge Davis: Okay. Thank you. We discussed the claim prior to going on the record today. We completed an updated BRC Order. Really, that’s just to affirm that the BRC Order that we did, because it was more than a year ago, is still applicable, though.  But – But we’re – We did go over all that again very carefully. We’re satisfied with that. We went over the...the proof in the record as well, everybody’s satisfied with that. Plus, it will also be on the hearing order that you’ll be able to look at and we can say if it’s wrong before we leave today. We need to do that as well. 

          Significantly, we find no updated BRC Order in the record identifying the contested issues to be decided.  As alluded to by the ALJ and as set forth herein, the only order in the record identifying the medications and medical procedures subject to this medical fee dispute is contained in the April 5, 2016, BRC Order.  Further, there is no order indicating, as stated in the April 21, 2017, Opinion and Order, that the reasonableness, necessity, and work-relatedness of the spinal cord stimulator and intrathecal pain pump were subject to this medical dispute.  In fact, we find nothing in the record contesting the compensability of the intrathecal pain pump.  Similarly, there is nothing in the record indicating the Lidoderm patches and Diclofenac are no longer at issue, as stated in the April 21, 2017, Opinion and Order.  We also note Dr. Ensalada’s July 30, 2015, report filed by James River questioned the use of Cialis as a contested medication.  The April 15, 2016, Order alluded to by the ALJ at the hearing lists the reasonableness, necessity, and work-relatedness of Cialis as a contested issue.  However, the opinion and order does not list Cialis as a contested issue.  In the briefs to the ALJ, Sullivan addressed his use of Cialis but James River did not.  We note James River addressed the reasonableness and necessity of the spinal cord stimulator and intrathecal pain pump in its brief and Sullivan did not. Sullivan did not address the reasonableness and necessity of either procedure.  Since Sullivan does not assert the work-relatedness, reasonableness, and necessity for the spinal cord stimulator and intrathecal pain pump were not subject to dispute and James River does not take issue with the ALJ’s statement in the opinion and order that Sullivan’s use of Lidoderm patches and Diclofenac are not subject to the medical dispute, we will not address the ALJ’s ruling on the compensability of these procedures and his failure to address the compensability of Diclofenac and Lidoderm patches.  Further, since James River’s brief to the ALJ did not address Sullivan’s use of Cialis and James River did not file a petition for reconsideration regarding the ALJ’s failure to list Sullivan’s use of Cialis as a contested issue and address its issue in the April 21, 2017, Opinion and Order, we will not address the failure to address the compensability of Cialis.

          At the hearing, only Sullivan testified. He described the work injury:

Q: All right, I gotcha. Where did the rock hit you, if you know?

A: I guess it hit me in the back of the head, I guess, and then just crushed me down. I was sitting on a bucket and I – My – Which my miner was tore up, so I went to the other side and cut for another feller. Then I came back over, they said my miner was fixed. So I went back up and we got to the face and cut two cars (spelled phonetically) of one side, set over, and cut one car (spelled phonetically), then the other buggy come up, I cut it. And I was loading the back-end of it and looked back like that there and that’s all I remember. And I started remembering the day – You know, I thought I was still in the bed. So then I remember coming back and where I was going. I remember putting my boots on. I remembered where I was at.

          Sullivan was treated by Cardinal Hill for fourteen days. Dr. McDowell, his treating physician since the injury, referred him to Dr. Vascello for injections.  Sullivan credits Dr. McDowell with getting him on his feet and active stating, “If it wasn’t for her, I don’t believe I would do… doing what I am now.”  Sullivan has problems with both knees and wears a brace for his left knee.  He is required to take Miralax for chronic constipation due to a neurogenic bowel condition.  He also takes Alfuzosin to help with a neurogenic bladder problem.  Sullivan testified the bilateral rhizotomies helped with the discomfort in his hips and his lower back, and he is able to sleep on his stomach.  He estimated he underwent three procedures in the last twelve years.  Sullivan has not undergone the bursa injections recommended by Dr. Vascello as they were not approved.  He believes the injections would help the pain in his bottom because he has trouble sitting.  Sullivan explained he drives sitting on a pillow and cannot have his wallet in his back pocket when he sits.  He acknowledged an attempt was made to implant a spinal cord stimulator. 

          Sullivan testified that Tramadol relieves his pain.  Sullivan believes his wife would leave him if he did not take the Cialis.  He takes Dantrolene for back spasms.  Sullivan testified he had been taking Gabapentin because he could not take Neurontin as it caused dizziness.  He has been switched to Galise, an extended release medication that helps with the nerve pain in his feet.  He takes Lamictal for “nerve endings.” He no longer takes Diclofenac.  He testified that he waited almost a year before trying Methadone.  Even though it helps reduce his pain, Dr. McDowell has reduced his dosage.  Mexiletine helps with nerve spasms.  He takes Oxycodone as needed, usually one pill at bedtime, which allows him to sleep for a couple of hours.  He has no medication for insomnia.  Sullivan testified he stays active and described his activities at home.  He has maintained the same weight since the injury.  

          Sullivan hoped Dr. McDowell would increase his Methadone dosage because it helps more than the other medications.  This would allow her to reduce the other medications.  However, Dr. McDowell did not have time to reduce the other medications due to the medical dispute.  He has undergone physical therapy and engages in home exercises.  The Lidoderm patches help with the numbness in his back and bottom.

          In the April 21, 2017, Opinion and Order, after summarizing Sullivan’s testimony and the medical evidence, the ALJ provided the following findings of fact and conclusions of law:

     Regardless, in reliance on Dr. Kriss I find the opioids, including the Methadone, Oxycodone and Tramadol to be non-compensable.

     Because of the long standing nature of the Plaintiff’s opioid in-take it would be best if he were weaned from them rather than cut off cold turkey. As such Dr. McDowell shall, within thirty days of the date of this Opinion, submit a reasonable weaning plan, as to duration and cost, or make a referral to a program that will provide the same service. Failure to produce such a plan or referral, or failure by Mr. Sullivan to participate, shall make the opioids automatically non-compensable. If Mr. Sullivan does participate then at the end of the program the opioids will be non-compensable.

Gabapentin, Dantrolene and Nortriptyline

     Pursuant to the medical payment obligor’s primary expert, Dr. Kriss, who has already been relied upon, these medicines are appropriate if the opioids are discontinued. Therefore they will be compensable.


     Dr. McDowell specifically states this medicine is work-related and reasonable and necessary and related to the overall comprehensive care of the Plaintiff’s spinal cord injury.

     The Movant argues that this medicine is used to treat bipolar disorder and there is no evidence in the record to support this diagnosis.

     On this medicine I will agree with Dr. McDowell. The Plaintiff makes credible, undoubtedly credible, complaints about how this severe injury has affected his life. That some doctors, notably the Movant’s retained experts, differ on the correct use of this medicine, will not sway my decision when it is being prescribed to deal with the psychological effects of the injury.

     The Lamictal is compensable.


     Given the sheer number of medications that the Plaintiff takes, even without those medicines in this Opinion, and in the evidence, that he will no longer take, he takes a large amount of prescription medicines. This may cause GI distress.

     However, as the Movant notes, there is no evidence of work-relatedness of this medicines. Given the type of medicine it is it would not be rational for me to infer or draw conclusions about work-relatedness without a more specific statement.

     The Omeprazole is non-compensable as not work-related.


     Dr. McDowell has specifically stated this medicine is work-related and reasonable and necessary. However, as the Movant points out, this medicine is used to treat heart arrhythmias. Given the Plaintiff’s original injury to his spinal cord, and with no diagnosis of any injury to his heart, I will not find this medicine work-related without a more detailed causal connection and explanation. Which I do not have. This medicine is noncompensable as not work-related.

Lumbar facet rhizotomies

     I find the rhizotomies as already done to be reasonable and necessary and work-related. Whether or not something succeeded is not, by itself, a good indicator of whether or not it was reasonable to try.

     However, the Plaintiff reported, contemporaneously with the rhizotomies that they didn’t help. Why he later reported they did I cannot say. But I am more inclined to believe his statements made at the time rather than later. Since they didn’t help future rhizotomies will be not be compensable.

Ischial bursa injections

     It’s not so much that I am disinclined to accept Dr. McDowell’s recommendation it’s that I have no solid proof this condition even potentially exists to warrant these diagnostic injection [sic]. Dr. Kriss did not find any and Dr. McDowell has not adequately explained why she thinks the condition maybe present. These injections are not compensable.

Spinal cord stimulator

     Absent other factors I would find this compensable as a reasonable, nonnarcotic, pain control method. However the primary treating physician, Dr. McDowell, does not believe this is reasonable and necessary due to the InterStim device Mr. Sullivan has. Therefore it is non-compensable.

Intrathecal pain pump

     For the reasons set forth above regarding the opioids, and the fact that this is just another opioids delivery system, this is non-compensable.

          The order reads:

1. The Lamictal, Gabapentin, Dantrolene, and Nortriptyline are all work-related, reasonable and necessary and compensable. 

2. The Opioids, intrathecal pain pump, spinal cord stimulator, rhizotomies, ischial bursa injections, Mexiletine, and Omeprazole, are all non-compensable for the reasons set forth above. The weaning program will be instituted as set forth above. 

          Sullivan filed a petition for reconsideration taking issue with the ALJ’s statement that since Sullivan stated contemporaneously with the rhizotomies that they did not help, future rhizotomies would not be compensable.  Sullivan indicated this statement is a patent error and factually inaccurate.  He asserted Drs. McDowell and Vascello noted the benefit of the lumbar facet rhizotomies, and Dr. Ensalada expressed the opinion the lumbar facet rhizotomies were both medically reasonable and necessary.  He observed only Dr. Kriss indicated the rhizotomies should be denied.  Sullivan noted in fairness to Dr. Kriss, he had reviewed the records spanning the years 2015 through 2016, and did not have access to the medical treatment records for previous ten years.  Sullivan asserted he had obtained significant and sustained benefit and improved quality of life with the lumbar facet rhizotomies which do not involve the use of opioid medications.  Sullivan noted he testified to the benefits which the rhizotomies provided.  He contends his testimony is consistent with the September 15, 2015, office note of Dr. Vascello indicating Sullivan experienced more than 80% pain relief.  Further, Sullivan contends Dr. Kriss was confused by the pain scores which were specifically explained by Dr. McDowell.  He requested more specific findings and a correction of this error and an order determining the lumbar facet rhizotomies are compensable. 

     Sullivan also requested the ALJ reconsider his denial of the bursa injections.  He noted the ALJ stated Dr. McDowell had not adequately explained why she thought the condition may be present.  However, Sullivan contended Dr. McDowell had provided an explanation which he sets forth verbatim in his brief. Since Dr. McDowell had adequately explained these diagnostic injections are necessary in order to ensure the painful condition is treated appropriately, Sullivan requested the ALJ’s erroneous interpretation of her opinion be corrected. 

     Finally, Sullivan took exception to the ALJ’s determination the opioids were non-compensable, as Sullivan was left with no alternative for pain relief.  Sullivan noted the lumbar rhizotomies provided significant long-term benefit; however, since it and the pain medications were determined to be non-compensable he is left with no alternative for pain relief.  Sullivan cited to Dr. McDowell’s professional qualifications and the fact that she has been his treating physician since the injury.  Sullivan requested the treatment regimen for pain relief, including the opioids as directed by Dr. McDowell, be allowed to continue since they have been extremely beneficial to him in the past twelve years. 

     In the June 5, 2017, Order, the ALJ stated as follows:

The Plaintiff does an excellent job of pointing out the volume of evidence which contradicts my conclusion regarding the rhizotomies and potential explanations for why Dr. Kriss reached the "wrong" conclusion. However the undersigned is without the authority to reverse a factual finding that is supported by substantial evidence. Regardless I reviewed all of the evidence, including that cited by the Plaintiff. The Petition is OVERRULED.

          On appeal, Sullivan contends the ALJ’s determination regarding the lumbar facet rhizotomies is not based on a correct understanding of the medical evidence.  Sullivan cites to the letters of Dr. McDowell and her explanation of the need for the rhizotomies.  He notes Dr. McDowell directly addressed the statements of Dr. Kriss, noting his opinions reflect a lack of understanding of the complexity of Sullivan’s condition.  He posits the ALJ appears to have relied upon Dr. Kriss in stating that since the rhizotomies did not help, future rhizotomies would not be compensable.  Sullivan asserts both Drs. McDowell and Vascello noted the benefit of the lumbar facet rhizotomies, and even Dr. Ensalada opined they were medically reasonable and necessary.  Sullivan cites to his testimony regarding the relief provided by the rhizotomies.  Sullivan asserts since the ALJ had an erroneous understanding of the relevant evidence, his opinion is not supported by substantial evidence. 

          Sullivan also takes issue with the ALJ’s decision regarding the compensability of the ischial bursa injections.  He notes that in her November 11, 2015, report, Dr. McDowell indicates the bursa injections were recommended because of the location of the pain in the gluteal area.  Sullivan sets forth Dr. McDowell’s discussion in the December 2016 report which explains the nature of the pain Sullivan suffers including the pain resulting from a direct injury to the spinal cord. 

          Sullivan argues the ALJ’s decision regarding the ischial bursa injections was based upon the fact he found no solid proof the condition warranting the injections existed.  Noting the ALJ indicated Dr. Kriss did not find any proof of the condition, Sullivan explains Dr. Kriss did not have the benefit of reviewing the explanation of Dr. McDowell which indicates the injections are a diagnostic tool to rule out inflammation versus neuropathic pain.  Sullivan argues the ALJ’s interpretation of Dr. McDowell’s detailed report is erroneous and insufficient to support a finding of non-compensability.  

          Finally, Sullivan asserts the ALJ’s decision regarding the compensability of the opioids is not supported by substantial evidence.  Sullivan again cites to his testimony and Dr. McDowell’s explanation.  He argues there is no question that he is on an opioid regimen for control of his pain, and after twelve years of treatment Dr. McDowell has determined this to be the best course of action in an attempt to control the pain.  Sullivan argues the ALJ relied upon Dr. Kriss who provided an inadequate explanation and did not have the benefit of Dr. McDowell’s report outlining the nature of the injury and the problems resulting from the spinal cord injury.  Sullivan contends the report of Dr. Kriss based on a one-time evaluation does not constitute substantial evidence supporting the ALJ’s decision.

          In a post-award medical fee dispute, the burden of proof and risk of non-persuasion with respect to the reasonableness and necessity of medical treatment falls on the employer.  National Pizza Company v. Curry, 802 S.W.2d 949 (Ky. App. 1991). 

          The Kentucky Supreme Court held in C & T of Hazard v. Stollings, 2012-SC-000834-WC, rendered October 24, 2013, Designated Not To Be Published, that the burden is placed on the party moving to reopen because it is that party who is attempting to overturn a final award of workers’ compensation and must present facts and reasons to support that party’s position:

     The party responsible for paying post-award medical expenses has the burden of contesting a particular expense by filing a timely motion to reopen and proving it to be non-compensable. Crawford & Co. v. Wright, 284 S.W.3d 136, 140 (Ky. 2009) (citing Mitee Enterprises v. Yates, 865 S.W.2d 654 (Ky. 1993) (holding that the burden of contesting a post-award medical expense in a timely manner and proving that it is non-compensable is on the employer)). As stated in Larson's Workers' Compensation Law, § 131.03[3][c], “the burden of proof of showing a change in condition is normally on the party, whether claimant or employer, asserting the change ....” The burden is placed on the party moving to reopen because it is that party who is attempting to overturn a final award of workers' compensation and thus must present facts and reasons to support that party's position. It is not the responsibility of the party who is defending the original award to make the case for the party attacking it. Instead, the party who is defending the original award must only present evidence to rebut the other party's arguments.

. . .

Thus, C & T had the burden of proof to show that Stolling's treatment was unreasonable and not work-related.

Slip Op. at 4-5. 

          Since James River was successful in its burden, the question on appeal is whether there is substantial evidence of record to support the ALJ’s decision. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).  “Substantial evidence” is defined as evidence of relevant consequence having the fitness to induce conviction in the minds of reasonable persons. Smyzer v. B. F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 1971).  

          In rendering a decision, KRS 342.285 grants an ALJ as fact-finder the sole discretion to determine the quality, character, and substance of evidence. Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). An ALJ may draw reasonable inferences from the evidence, 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.  Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979); Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977); 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).  Rather, it must be shown there was no evidence of substantial probative value to support the decision.  Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986). 

          The function of the Board in reviewing an ALJ’s decision is limited to a determination of whether the findings made 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).  The Board, as an appellate tribunal, may not usurp the ALJ's role as fact-finder by superimposing its own appraisals as to weight and credibility or by noting other conclusions or reasonable inferences that otherwise could have been drawn from the evidence.  Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999). 

          We will address the issues raised by Sullivan in reverse order.  The ALJ specifically stated he relied upon the opinions of Dr. Kriss in concluding the opioid medications were no longer compensable.  Although the ALJ did not state whether he found the opioids were not reasonable and necessary or work-related treatment, Dr. Kriss’ June 8, 2016, report reflects his belief the opioids are not reasonable and necessary and needed to be discontinued as they have no beneficial effect.  Dr. Kriss stated that on August 3, 2015, Sullivan’s pain was 7/10 and an average long-term pain rating of 7/10 is unacceptably high for a patient taking massive daily doses of three narcotics simultaneously.  Dr. Kriss noted Dr. Vascello stated “Neurontin, Methadone, Oxycodone, and Ultram have minimal analgesic benefit.”  Dr. Kriss further stated that, generally speaking, “if a patient taking three high dose narcotic opioids simultaneously long-term, and all three narcotics together result in only “minimal analgesic benefit,” it seems rather obvious the multiple high dose narcotics should be discontinued.”  He noted Dr. Vascello recommended weaning Sullivan off Methadone but left it up to Dr. McDowell.  Dr. Kriss also noted that on September 29, 2015, Sullivan related his “pain meds are not as effective as they used to be.”  Dr. Kriss believed this was not surprising, “because when a patient takes three simultaneous high dose narcotics for more than a year that patient will undergo ‘tachyphylaxis.’” He explained this occurs when “the body ‘getting used to’ a drug such that ever-increasing dosages are required to achieve the same clinical effect.”  Dr. Kriss believed tachyphylaxis will continue unabated, as long as Sullivan continues to take narcotics each day and pain relief from the narcotics continues to decrease. 

          Dr. Kriss provided the following explanation:

I recommend against continued long-term narcotic use; the ultra-high dose narcotics is not ‘working’ in terms of pain relief or improved function anyways, objectively or subjectively.

Long-term narcotics carry known and dosing-proportionate, duration-proportionate risks of tolerance, dependency, addiction, tachyphylaxis, hypogonadism, depression, over-sedation, constipation, decreased cognition, decreased immune system, pain hypersensitization, adrenal / endocrine dysfunction, bone mineralization losses, and other significant problems.

Mister Sullivan already has several of these complications, including tachyphylaxis (“getting used to” the drug, such that ever-escalating dosages are required to obtain the same clinical effect), potential hypogonadism (decreased testosterone production as a direction consequence of long-term opioids), physical dependency, constipation, and possible pain hypersensitization. The risks and complications of long-term high-dose opioids are cumulative and progressive; they will continue to worsen as long as Mister Sullivan continues to take narcotics.

No peer-reviewed published large series medical study has ever shown objective improvement in long-term function with long-term narcotics in the treatment of chronic benign (non-cancer) pain such as that of Mister Sullivan. That is what the known objective science currently tells us.

          Dr. Kriss opined Sullivan’s chronic pain needs to be treated with something other than narcotics.  He recommended Sullivan’s pain control be switched to something which is safe, non-addictive, and is medically proven effective in the treatment of chronic benign pain such as non-narcotic medications and non-steroidal ant-inflammatory, tricyclic antidepressant, and anticonvulsant drug classes.  Dr. Kriss recommended non-narcotic pain control and set forth the medications which would be appropriate.  Dr. Kriss also set forth a schedule for the narcotic weaning.

          Sullivan’s argument to the contrary, the opinions of Dr. Kriss constitute substantial evidence supporting the ALJ’s determination the opioid medications are non-compensable.  We also note Dr. Ensalada expressed opinions similar to Dr. Kriss.  Although the ALJ did not specifically state that he found the opioid medications to be unreasonable and unnecessary treatment, we conclude his stated reliance upon Dr. Kriss’ opinions demonstrates his belief the medications were no longer reasonable and necessary treatment of Sullivan’s injury.  Thus, we must affirm the ALJ’s determination of the non-compensability of the opioid medications.

          Concerning the ALJ’s finding regarding the ischial bursa injections, we note the ALJ stated he would not accept Dr. McDowell’s opinion since there was no solid proof the condition potentially existed in order to warrant the diagnostic injections.  In stating Dr. Kriss “did not find any,” we conclude the ALJ believed Dr. Kriss did not find any proof the condition in question existed.  This is exemplifed in the report of Dr. Kriss addressing the need for the ischial bursa injections wherein he stated as follows:

Mr. Sullivan does not have ischial bursitis bone-based pain.

These conditions would never permit highly anatomically-targeted deep massage by the wife, much less subjective improvement with such massage.

Mr. Sullivan had no tenderness of the left ischial whatsoever on examination today, which also definitely rules out any inflammation of the ischium or its bursa.

With no clinical evidence whatsoever of ischial bursitis or ischium bone-based pain, there is no medically reasonable indication or medical necessity for ischial injections of any type.

          In resolving the compensability of the ischial bursa injections, the ALJ found the injections non-compensable based on the opinion of Dr. Kriss.  Dr. Kriss expressed the opinion there is no clinical evidence of a condition which would indicate the procedure was medically reasonable or necessary.  Since Dr. Kriss opined Sullivan did not have a condition justifying the need for ischial bursa injections, his medical opinion constitutes substantial evidence in support of the ALJ’s decision and we must affirm the ALJ’s decision concerning the compensability of the injections.

          The above aside, the ALJ’s decision regarding the compensability of future lumbar facet rhizotomies fails to cite to the evidence in the record supporting his decision.  The ALJ first concluded the previously administered rhizotomies were reasonable, necessary, and work-related.  However, the stated basis for his decision that future rhizotomies are not compensable is that Sullivan allegedly reported contemporaneously with the rhizotomies that they did not help.  Sullivan’s testimony does not support the ALJ’s statement.  More importantly, the ALJ failed to identify where in the record that statement by Sullivan appears.  Similarly, the ALJ did not cite to a medical record or report attributing any such statement to Sullivan.  The ALJ’s summary of Sullivan’s testimony and the medical evidence fails to mention such a statement by Sullivan.  Sullivan raised this very issue in his petition for reconsideration and the ALJ summarily refused to provide further explanation.   

          Sullivan’s testimony at the hearing established the rhizotomies were very beneficial.  The records of Dr. McDowell establish the rhizotomies have been beneficial.  Also, the opinions of Dr. Ensalada, upon whom James River based the medical fee dispute contesting the reasonableness and necessity of the rhizotomies, do not support the ALJ’s decision.  In his report of September 15, 2015, regarding the need for the bilateral lumbar rhizotomies, Dr. Ensalada stated as follows:

On June 9, 2015, the patient reported 18 months of 80% pain relief and functional improvement following the March 26, 2013, lumbar facet radiofrequency ablation, but a return to baseline levels of pain thereafter.

At that juncture (June 9, 2015), the appropriate, reasonable and necessary next step was to repeat the lumbar facet radiofrequency ablation, but instead, diagnostic medial branch blocks were again performed. The diagnostic medial branch blocks were done on August 3, 2015, were not appropriate, not reasonable and not necessary, because the diagnostic medial branch blocks done on March 5, 2013, and the 18 months of pain relief following the lumbar facet rhizotomy done on March 26, 2013, clearly demonstrated the facetogenic nature of this patient’s low back pain. Consequently, I recommend a retrospective review on the issue of the reasonableness and necessity of the diagnostic medial branch blocks done on August 3, 2015. The requested lumbar facet rhizotomy is, however, medically reasonable and necessary.       

          The ALJ must provide the basis for his decision in order to permit meaningful review.  In this case, we cannot find any statement in the record which establishes Sullivan said that at the time the rhizotomies were performed, the procedure did not help.  Further, the ALJ did not cite to any medical evidence in support of his decision on this issue.  More significantly, the ALJ did not state whether the rhizotomies were not reasonable and necessary or not work-related as the basis for his finding that the future rhizotomies are not compensable.  Consequently, the claim must be remanded to the ALJ for additional findings of fact addressing the issue of whether the rhizotomies are reasonable and necessary and/or work-related. We express no opinion as to the outcome on remand. The ALJ’s finding that the lumbar facet rhizotomies are not compensable shall be vacated and the claim remanded for additional findings.          

          Accordingly, regarding the issues raised on appeal, the determinations of the ALJ in the April 21, 2017, Opinion and Order and April 5, 2016, Order that the opioids Methadone, Oxycodone, Tramadol, and the ischial bursa injections are non-compensable are AFFIRMED.  The ALJ’s determination the lumbar facet rhizotomies are not compensable is VACATED.  This claim is REMANDED to the ALJ for a determination as to the compensability of the lumbar facet rhizotomies supported by the appropriate findings in accordance with the views expressed herein. 

          ALL CONCUR.



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