RENDERED:  APRIL 27, 2018; 10:00 A.M.



Commonwealth of Kentucky

Court of Appeals


NO. 2017-CA-001328-WC




our lady of the way hospital                                    APPELLANT




                           PETITION FOR REVIEW OF A DECISION


                                        ACTION NO. WC-98-59307




WORKERS’ COMPENSATION BOARD                                   APPELLEES







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COMBS, JUDGE:  Appellant, Our Lady of the Way Hospital, appeals from an Opinion of the Workers’ Compensation Board in this post-award medical fee dispute.  We agree with Appellant that the Board erred in reversing the determination of the Administrative Law Judge (ALJ) that Tramadol was a non-compensable medication treatment for the injury at issue.  We reverse the Opinion of the Board solely as to the holding concerning Tramadol, and we reinstate the order and opinion of the Administrative Law Judge. 

                   We shall refer to the record only as necessary in order to resolve the issue before us.  On October 19, 1998, Appellee, Marie Miller, injured her low back while working for Appellant, Our Lady of the Way Hospital.  The case was settled and approved by Order entered on March 7, 2000, based upon a 5% impairment rating.  The Form 110/Agreement as to Compensation reflects a diagnosis of degenerative disc disease and low back strain.  The settlement did not include a waiver or buy-out of future medicals.

                   On September 12, 2016, Our Lady of the Way filed a motion to reopen and a Form 112 Medical Fee Dispute contesting medical treatment rendered by Dr. Suzanne Ford -- including prescription medication.  In support of its motion, Our Lady of the Way filed the Utilization Review report of Dr. Koss.  Our Lady of the Way subsequently submitted the report of Dr. Ellen Ballard, who saw Miller for an Independent Medical Exam (IME) on October 18, 2016.  Miller submitted a report from Dr. Ford.

                   By Opinion and Order rendered March 24, 2017, the ALJ determined that Tramadol, Gabapentin, Flector patches, and Metaxalone were not reasonable and necessary for treatment of Miller’s 1998 work injury and “therefore, are not compensable.” 

                   Miller appealed to the Workers’ Compensation Board.  By Opinion entered August 11, 2017, the Board affirmed in part, but it reversed the ALJ’s decision that the Tramadol was non-compensable.  The Board explained that while Dr. Koss’s opinion provided substantial evidence to support the ALJ’s determination with respect to the Flector patches, Gabapentin and Metaxalone, he offered no opinion as to Tramadol -- although he was aware Miller was taking it.  The Board further explained that:

In the Form 112 and its Motion to Reopen, Our Lady of the Way only contested the Flector patches, Gabapentin and Metaxalone.  The Benefit Review Conference Order reflects the prescription for Tramadol was also contested.  Although the parties may have stipulated to the contested issues, we conclude there is no medical evidence and by extension [no] substantial evidence, supporting the ALJ’s determination Tramadol is not reasonable and necessary treatment of Miller’s work injury. 


                   The Board noted that Dr. Ballard had addressed specific questions in her report, as follows:

2.  Do you believe the patient’s treatment with Dr. Suzanne Ford following up every three months constitutes reasonable and necessary treatment regarding the patient’s low back.  No. This pertains to the patient’s 1998 work injury.  She may well have arthritis from age, and this is involving multiple joints in her body not due to a work injury.  Her work injury would not require these visits.


(Bold-face emphasis original).


                   Dr. Ballard was also asked if each of the prescription medications -- Gabapentin, Metaxalone, Flector patches and Tramadol -- “constitutes reasonable and necessary treatment regarding the patient’s low back?”  Dr. Ballard responded “No” as to each and explained that “The same reasoning applies as stated in #2.  (Bold-face emphasis original). 

                   The Board concluded that:

Dr. Ballard’s opinions do not constitute substantial evidence in support of the ALJ’s decision concerning the reasonableness and necessity for Tramadol.  Dr. Ballard’s response “the same reasoning applies as stated in #2,” does not address the reasonableness and necessity of Tramadol.  As noted, the response to question #2 merely stated that Miller’s work injury would not require these visits.…  Stating the work injury would not require these visits does not provide a basis for the finding Tramadol is not reasonable and necessary treatment.


Our Lady of the Way filed a Petition for Review in this Court.  It contends that the Board misconstrued Dr. Ballard’s opinion, erred in assessing her report, and usurped the ALJ’s authority in reversing the ALJ’s decision with respect to the prescription of Tramadol.  Miller has not filed a Response as permitted by Kentucky Rule of Civil Procedure 76.25(6) (“Each appellee may file … a response to the petition within 20 days of the date on which the petition was filed with the Court of Appeals.”).

As the party responsible for paying post-award medical expenses, Our Lady of the Way had the burden of contesting them by filing a timely motion to reopen and proving that they were unreasonable and unnecessary for the effects of the work injury.  Crawford & Co. v. Wright, 284 S.W.3d 136 (Ky. 2009).  Where, as here, the ALJ finds in favor of the party with the burden of proof on an issue, the standard of our review is whether the finding is supported by substantial evidence.  Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).

The ALJ summarized the medical evidence, including Dr. Ballard’s opinion, as follows:

Dr. Ballard’s impression was a history of low back pain with multiple episodes of injury including a fall at a car dealership and a motor vehicle accident.  Dr. Ballard’s opinion was that Plaintiff’s medical treatment with Dr. Ford was not reasonable or necessary for the treatment of her 1998 work injury.  Dr. Ballard opined the Plaintiff had arthritis from age and this is involving multiple joints in her body, not due to her work injury.  Dr. Ballard believed the work injury would not require these monthly office visits.  Dr. Ballard opined the Plaintiff did not require any further medical treatment regarding her 1998 work injury.


                    As was her prerogative, the ALJ found Dr. Koss’s and Dr. Ballard’s opinions more credible and better reasoned than that of Dr. Ford.  The ALJ explained that Dr. Ballard based upon her opinion upon review of the medical records and physical examination.  Further, Dr. Ballard noted that Miller “had experienced a fall injury and an automobile accident” since the work injury.  Dr. Ballard explained that Miller’s condition was due to arthritis involving multiple joints of the body and specifically not due to a work-related injury.  The ALJ was not persuaded by Dr. Ford’s opinion because she did not support it with any medical findings or rationale.

KRS 342.285 designates the ALJ as the finder of fact in workers' compensation cases. It permits an appeal to the Board but provides that the ALJ's decision is “conclusive and binding as to all questions of fact” and, together with KRS 342.290, prohibits the Board or a reviewing court from substituting its judgment for the ALJ's “as to the weight of evidence on questions of fact.” Thus, KRS 342.285 gives the ALJ the sole discretion to determine the quality, character, and substance of evidence. As fact-finder, an 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 party's total proof. KRS 342.285(2) and KRS 342.290 limit administrative and judicial review of an ALJ's decision to determining whether the ALJ “acted without or in excess of his powers;” whether the decision “was procured by fraud;” or whether the decision was erroneous as a matter of law.


Gaines Gentry Thoroughbreds/Fayette Farms v. Mandujano, 366 S.W.3d 456, 461 (Ky. 2012) (footnotes omitted).

In the case before us, the Board focused on Dr. Ballard’s answers to two questions in her report.  In doing so, we are persuaded that the Board impermissibly reweighed the evidence -- instead of reviewing it -- and substituted its judgment for that of the ALJ.  See Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993) (Reviewing court usurped ALJ’s role regarding facts and inferences to be drawn from medical evidence, where it reversed ALJ’s decision that proposed surgery was neither reasonable nor necessary, because it believed defense medical testimony was flawed).

Accordingly, to the extent that it reversed the ALJ’s decision with respect to the compensability of Tramadol, we reverse the August 11, 2017, Opinion of the Workers’ Compensation Board.  We remand to the Board with directions that it reinstate by appropriate order the Opinion and Order of the ALJ rendered on March 24, 2017.







Ronald J. Pohl

Brian D. Wimsatt

Louisville, Kentucky