RENDERED:  FEBRUARY 9, 2018; 10:00 A.M.



Commonwealth of Kentucky

Court of Appeals

NO. 2016-CA-001635-WC



hazard community college                                         APPELLANT




                           PETITION FOR REVIEW OF A DECISION


                                        ACTION NO. wc-10-77219





WORKERS’ COMPENSATION BOARD                                   APPELLEES







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THOMPSON, JUDGE:  Hazard Community College (HCC) appeals from the Workers’ Compensation Board’s opinion affirming the Administrative Law Judge’s (ALJ) medical dispute order and opinion, which determined that the medications prescribed to Wayne Melton were compensable.

                   In 2015, HCC settled a workers’ compensation dispute with Melton allowing him the right to future medical benefits related to his lumbar spine.  On February 4, 2016, HCC filed a motion to reopen challenging Melton’s medical treatment with the medications Butrans, Hydrocodone/APAP and Duloxetine and a motion to join Dr. Laura Asher as a party.  It attached the utilization report of Dr. Woodley B. Mardy-Davis that treatment with these medications was not related to the work injury and neither medically necessary nor appropriate.

                   On February 26, 2016, the ALJ entered an order sustaining the motion to reopen and setting a telephonic conference for March 14, 2016.  The ALJ sent a letter to Dr. Asher advising her of the medical dispute and the telephonic conference.

                   Dr. Asher and Melton did not appear at the telephonic conference held on March 14, 2016.  At the telephonic conference, the ALJ set a telephonic benefit review conference/hearing for April 12, 2016 and provided thirty days for the parties to introduce evidence. 

                   In the ALJ’s order dated April 12, 2016, the ALJ noted the parties waived a hearing and stated, “[t]he matter is submitted as of April 12, 2016” despite the fact that the thirty days to submit evidence had not yet expired. 

                   On April 12, 2016, Dr. Asher sent a letter to the ALJ setting forth Melton’s treatment and the reasons supporting her prescriptions for the contested medication.

                   On April 18, 2016, the ALJ issued an order stating that she had received the letter from Dr. Asher on April 15, 2016, and she was notifying all the parties to ensure proper filing into the record.

                   On April 28, 2016, HCC filed an objection and motion to strike Dr. Asher’s correspondence as untimely filed and prejudicial.  The ALJ denied this motion, noting HCC did not move to set aside the submission of the claim for decision, nor did it attempt to rebut Dr. Asher’s assertions.

                   On June 10, 2016, the ALJ issued her decision denying HCC’s medical dispute.  The ALJ found the opinion of Dr. Asher persuasive and found that “the contested medications are reasonable and necessary for the cure and/or relief of the effects of the work injury and, therefore, compensable.”

                   HCC filed a petition for reconsideration arguing the ALJ erred by considering Dr. Asher’s untimely correspondence.  The ALJ denied the petition, finding it “within her discretion to allow evidence to be untimely filed as the statements from the treating physician are of utmost importance in determining the outcome of a medical dispute.”

                   The Board affirmed.  It noted that the proceedings in a post-award medical dispute in a reopening are governed by 803 Kentucky Administrative Regulations (KAR) 25:012 which allows for further proceedings, unlike 803 KAR 25:010 which establishes requirements for the scheduling order.  Therefore, it determined that this difference granted the ALJ greater discretion in deciding when to consider evidence.  The Board distinguished the case of T.J. Maxx v. Blagg, 274 S.W.3d 436 (Ky. 2008), because that case was an original proceeding, a hearing was held and it was governed by 803 KAR 25:010.  It noted that HCC did not move to reopen proof time, request leave to rebut Dr. Asher’s correspondence or move to cross examine her after the ALJ determined her correspondence would be admitted.

                   HCC appeals, arguing the ALJ abused her discretion by admitting evidence after the case was taken under submission where 803 KAR 25:010 was not followed and T.J. Maxx applies.

                   Although we normally review questions of law de novo, “[t]he Board's construction of its own regulations is entitled to respect.  The courts afford an administrative agency’s regulatory interpretation great weight particularly when determining a regulation's meaning and contours.”  Roach v. Owensboro Health Reg’l Hosp., 518 S.W.3d 786, 790 (Ky.App. 2017) (internal citation omitted). “[T]he function of the Court of Appeals in reviewing decisions of the Workers’ Compensation Board is to correct the Board only when we perceive that the Board has overlooked or misconstrued controlling law or committed an error in assessing the evidence so flagrant as to cause gross injustice.”  Daniel v. Armco Steel Co., L.P., 913 S.W.2d 797, 797–98 (Ky.App. 1995).

                   “It has long been accepted that an ALJ has broad discretion to control the taking and presentation of proof in a workers’ compensation proceeding.”  New Directions Hous. Auth. v. Walker, 149 S.W.3d 354, 358 (Ky. 2004).  However, ALJs cannot act in excess of their powers.  Kentucky Revised Statutes (KRS) 342.285(2)(a).

                   Pursuant to KRS 342.020(1), Melton is entitled any reasonable and necessary medical treatment for relief of his work-related injury, “whether or not the treatment has any curative effect.”  Nat’l Pizza Co. v. Curry, 802 S.W.2d 949, 951 (Ky.App. 1991).  This includes medication.

                   Pursuant to KRS 342.125(3), an employer may reopen a workers’ compensation case for a “determination of the compensability of medical expenses[.]”  However, “[t]he burden of proving that a treatment is unreasonable is on the employer.”  Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993).

                   We agree with the Board that T.J. Maxx is distinguishable.  In T.J. Maxx, the ALJ was determining whether a worker was disabled and, on his own accord, decided to require a university evaluation after the close of proof in a benefit review conference.  The Kentucky Supreme Court ruled that the ALJ abused its discretion by doing so because a subsection of 803 KAR 25:010, § 13 required the parties’ witness lists to be submitted at least ten days before the benefit review conference.  T.J. Maxx, 274 S.W.3d at 438.  Although another subsection permitted the ALJ to order additional discovery or proof between the benefit review conference and the hearing upon motion with good cause shown, “no regulation anticipates that additional proof will be taken after a claim has been heard, briefed and taken under submission.”  Id. 439.  Pursuant to KRS 342.275(2), which governs benefit review by the ALJ, the ALJ “shall render the award, order, or decision within sixty (60) days following the final hearing unless extension is mutually agreed to by all parties.”

                   803 KAR 25:012 governs the procedures for resolution of medical disputes.  While 803 KAR 25:012 provides deadlines for when proceedings should be filed, unlike 803 KAR 25:010 it does not provide any deadlines or procedures for an ALJ to follow in resolving such a dispute.

                   In Saint Joseph Hosp. v. Frye, 415 S.W.3d 631, 634 (Ky. 2013), the Kentucky Supreme Court recognized that its prior decisions “impl[ied] that an ALJ might have the authority, if not the regulatory framework, to reopen proof after a final hearing and after a claim has been taken under submission.”

                   The Board’s interpretation of its regulation is reasonable.  We agree with the Board that when a proceeding is governed by 803 KAR 25:012, the ALJ has greater discretion in deciding when to consider evidence, and that the ALJ did not abuse her discretion in deciding to consider evidence generated by the close of proof deadline and received three days after the deadline.  Additionally, by failing to request that the proof be reopened to allow it to rebut Dr. Asher’s letter, HCC is trying to deny Melton compensation for medicine for the relief of his pain on a technicality rather than by fulfilling its burden of proving that the medicine Melton is receiving is not necessary for relief from his injury.

                   Accordingly, we affirm the Board’s decision affirming that the ALJ had discretion to consider the correspondence after the close of proof.

                   ALL CONCUR.




K. Lance Lucas

Florence, Kentucky



McKinnley Morgan

London, Kentucky