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Workers’
Compensation Board
OPINION ENTERED: July 20, 2018
CLAIM NO. 200797849
ULYSSES ROBERTS PETITIONER
VS.
APPEAL FROM HON. JANE RICE WILLIAMS,
ADMINISTRATIVE
LAW JUDGE
OHI AUTOMOTIVE OF
AMERICA
And HON. JANE RICE
WILLIAMS,
ADMINISTRATIVE LAW
JUDGE RESPONDENTS
OPINION
AFFIRMING and REMANDING
* * *
* * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER,
Members.
RECHTER,
Member. Ulysses Roberts appeals from the January 24, 2018 Opinion,
Award and Order and the February 26, 2018 Order rendered by Hon. Jane Rice
Williams, Administrative Law Judge (“ALJ”).
The ALJ determined Roberts suffered an increase in her permanent partial
disability (“PPD”) on reopening, and ruled in favor of OHI Automotive of
America (“OHI”) regarding contested medical treatment. On appeal, Roberts argues the ALJ erred in concluding
she is not permanently totally disabled, in finding recommended narcotic
medication unreasonable, and in declining to enhance her income benefits by the
1.15 factor pursuant to KRS 342.730. For
the reasons set forth herein, we affirm and remand.
BACKGROUND
The Work-related Injury
On
January 25, 2005, Roberts injured her low back in the course of her employment
with OHI while bending and pulling a heavy machine die. She
underwent an L5-S1 fusion surgery by Dr. Mark Meyers on December 9, 2005, and
eventually returned to her job without restrictions. She sustained a second low back injury while
pulling on a die on April 18, 2007. She
treated regularly at the Pain Treatment Center, and continued working. In an
opinion dated August 29, 2008, Hon. Chris Davis, Administrative Law Judge, awarded
Roberts PPD benefits based upon a 20% impairment rating.
Motion to Reopen & Medical Fee Disputes
Roberts
experienced a worsening of her condition in 2009. On September 19, 2011, Dr. Phillip Tibbs
performed revision surgery of the L5-S1 fusion, and extended the fusion to the
L4-5 level. Roberts filed a motion to reopen her claim on
August 28, 2012, alleging a change of disability and increase in her impairment
rating. OHI subsequently filed motions
to reopen to contest the frequency of visits with Dr. Leonard Durrett,
prescriptions for Neurontin, Cyclobenzaprine/Flexeril, MS Contin, and Percocet,
and lumbar facet injection treatment by Drs. Katherine Ballard and Ballard
Wright. The claim was bifurcated. In a June 19, 2014 interlocutory order, the
ALJ concluded the injections were not beneficial and ordered Roberts to undergo
an inpatient-weaning program to eliminate the need for opioid pain
treatment.
OHI
filed an additional medical fee dispute on July 17, 2014, challenging the
reasonableness and necessity of proposed EMG/NCV testing by Dr. Wright. The claim was held in abeyance to allow
completion of the weaning process. The
claim was removed from abeyance on May 30, 2017. By the time of the ALJ’s January 24, 2018
Opinion, Roberts had not fully weaned from all medications. The remaining
issues for decision included a proper timeline to complete weaning of all
medications, the compensability of injections and rhizotomies, and whether
Roberts had experienced an increase in disability.
Summary of the Evidence
Roberts
was 49 years old at the time of the ALJ’s January 24, 2018 decision. She has a 12th grade education and
approximately 120 credit hours from Kentucky State University. Roberts worked as a press operator stamping
parts for OHI. She returned to work
after the initial injury, and again after the 2011 surgery. However, she was terminated after she reached
maximum medical improvement (“MMI”) following the 2011 surgery because OHI had
no work within her restrictions.
Following
the directives contained in the 2014 Interlocutory Opinion, Dr. Ballard reduced
Roberts’ prescription for Percocet and discontinued Morphine and Amitriptyline.
Roberts participated in a program of
weaning and rehabilitation, but did not benefit from the program. She testified her symptoms worsened and her
pain was not well-controlled, resulting in an inability to perform daily
functions.
Though
Dr. Meyers performed Roberts’ initial surgery, her subsequent care was provided
by Dr. Tibbs. Dr. Tibbs performed the
second surgical procedure in 2011 and placed Roberts at MMI on September 19,
2012. At that time, he did not recommend
further surgery. Rather, Dr. Tibbs opined
pain
management procedures, such as a rhizotomy, might be beneficial. He restricted
Roberts from lifting more than 30 pounds maximally and 15 pounds repetitively;
prolonged standing and sitting; and repetitive twisting or bending at the
waist. Dr. Tibbs did not feel Roberts
was capable of working, in part because of her high dose of opiate
medication.
In a January 13, 2013
report, Dr. Tibbs stated Roberts retained the physical capacity to return to
gainful employment on a full-time sustained basis with a restriction of no
lifting greater than 20 pounds. However,
at a March 6, 2014 deposition, Dr. Tibbs’ opinion had changed. Though Roberts was motivated to return to
work following her surgeries, Dr. Tibbs no longer recommended she return due to
the amount of medication she was prescribed, her ongoing pain, and her work
restrictions. In a December 5, 2014
letter, Dr. Tibbs stated he had reviewed a functional capacity evaluation
(“FCE”) which affirmed his belief and continued to believe that Roberts was
unable of performing even sedentary work on a sustained, competitive
basis.
Dr.
Ballard provided Roberts’ pain management care.
As directed in the June 19, 2014 Interlocutory Order, Dr. Ballard
referred Roberts to a weaning program in Tennessee. However, by December 17, 2014, Dr. Ballard
noted Roberts’ pain was increasing. She
continued Percocet, and explored injections and rhizotomy to alleviate Roberts’
pain. By May 4, 2015, Dr. Ballard discontinued
the weaning process due to Roberts’ uncontrolled pain and poor function. On August 25, 2015, Dr. Ballard requested
continued injections and, later, recommended physical therapy and continued
injections and medication. On February
15, 2017, after noting the failure of the weaning program, Dr. Ballard
recommended continuing treatment with Percocet, Amitriptyline, Gabapentin, and
Cymbalta. On November 21, 2017, Dr.
Ballard recommended a comprehensive pain management program including cognitive
behavioral therapy, chiropractic treatment or physical therapy, acupuncture,
yoga, pool therapy, injections, lumbar radiofrequency, epidural, and
Percocet. She felt it is possible that
the non-medical therapies could lead to weaning from opioids.
Roberts
submitted the September 15, 2015 FCE of Pro Active Therapy indicating she is capable
of the sedentary work category with the ability to exert 10 pounds of force
occasionally, and negligible force frequently.
However, based upon the evaluation, Roberts is incapable of sustaining
sedentary level of work for an 8-hour day.
Due to her limited sitting ability, she will need to alternate as needed
between sitting and other postures. The
results indicate she is only able to tolerate a 1.5-hour workday due to
functional limitations affecting work tolerance and endurance.
OHI submitted reports
from Dr. Timothy Kriss who performed an independent medical evaluation (“IME”)
on December 26, 2012. Dr. Kriss
diagnosed status post lumbar
fusion surgeries, chronic back pain with subjective bilateral semi-radicular
leg pain and no objective evidence of persistent lumbar radiculopathy on
examination or diagnostic testing. Dr. Kriss assigned a 20% impairment rating pursuant to the
American Medical Association Guides to the Evaluation of Permanent
Impairment, 5th Edition (“AMA Guides”) at the time of the
initial decision in the claim.
Following the second lumbar fusion
surgery in 2011, Dr. Kriss re-evaluated Roberts and assessed a 23% impairment,
yielding a 3% increase in impairment. Dr.
Kriss assigned permanent restrictions of no lifting greater than 25 pounds, and
avoidance of repetitive bending or twisting of the low back. In November of 2013, Dr. Kriss indicated
Roberts did not require any additional pain management treatment, injections,
or rhizotomy. He noted the numerous
injections and rhizotomies since 2005 had failed. He concluded pain management treatment is not helpful for Roberts as evidenced by a
decrease in functionality and an increase in pain level. In light of Roberts’ history of failed epidural injections, facet
injections, facet rhizotomies, and high dose narcotics carrying significant
risks without any relief, Dr. Kriss stated injections and narcotics should be stopped.
He recommended weaning from narcotic
medication, and beginning a new treatment plan that does not involve pain
management. Dr. Kriss recommended utilization of non-controlled muscle
relaxers, tricyclic anti-depressant medication, a daily home exercise program,
and a lumbar corset. Dr. Kriss noted
Roberts’ pain is legitimate, but repeating failed treatment is not a viable
medical treatment plan.
In an undated report submitted on January
28, 2016, Dr.
Kriss indicated he had reviewed his December 26, 2012 and November 22, 2013
reports and additional
records from Dr. Ballard from September 2015.
Dr. Kriss recommended a sequential weaning from Neurontin, MS Contin,
Cymbalta, Oxycodone/Percocet, and Flexeril.
Regarding continuing the course of pain management, Dr. Kriss stated:
We ALREADY KNOW exactly what happens when 2 specific lines of
treatment – pain management injections and pain management high-dose narcotics
– are administered to this specific patient.
They do not work. The five-year
experiment of injections, rhizotomies, and high-dose narcotics has already been
run, and the results are abject failure.
Dr.
James Owen performed an IME on August 22, 2012.
He assigned a 29% impairment rating pursuant to the AMA Guides. He stated Roberts had a 20% impairment at the
time of the prior award, with a 9% increase in impairment following the
award. He assigned a twenty-pound
lifting restriction and avoidance of activities
requiring bending, squatting or stooping. She would be unable to return to her
job as a die press operator.
Dr.
Ajith Nair of Kentuckiana Pain Specialists evaluated
Roberts on June 7, 2016. Dr. Nair
diagnosed chronic arachnoiditis, chronic pain syndrome, sacroiliitis, and
trochanteric bursitis. He opined Roberts
would benefit from a rehabilitation program and would be a good candidate to
work with an addiction doctor to reduce the amount of oral opioids. Dr. Nair also recommended a functional
restoration program that includes cognitive behavioral therapy and pain coping
skills along with physical strengthening.
ALJ’s Opinion
The
ALJ relied on Dr. Kriss to conclude Roberts has experienced a 3% increase in
her impairment rating. The ALJ then made
the following findings regarding the extent of Roberts’ disability and the
reasonableness and necessity of the contested treatment:
Plaintiff has not met her burden of proving
she is permanently and totally disabled. The determination of a total
disability award remains within the broad authority of the ALJ. Ira A.
Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000). To determine
the likelihood that a worker can resume some type of work under normal
employment conditions, the ALJ should consider the worker’s age, education
level, vocational skills, medical restrictions, emotional state and how those
factors interact. Id. “A worker's testimony is competent evidence of his
physical condition and of his ability to perform various activities both before
and after being injured.” Id. at 52 (citing Hush v. Abrams, 584
S.W.2d 48 (Ky. 1979)). On the date of reopening, August 28, 2012, Plaintiff was
44 years of age, certainly long from retirement age. She has a high school
education and has attended college. Her emotional state is not impaired
according to the evidence of record. The most favorable factor for determining
total disability is the significant list of restrictions.
She has worked in various industries including working in management.
Her restrictions should not render her unable to perform any job at all. She
cannot go back to her previous job as most agree but she has not proven she
cannot work at all. There is no evidence she has ever considered working
anywhere at this point which is underlined by the fact that she has been
awarded Social Security disability. No vocational testimony examines the job
options available and her qualifications related thereto.
Thus, her disability is now increased by 3%
with application of a 3 multiplier. This increase applies back to the date she
filed her motion to reopen, August 28, 2012, and extends through the end of the
425 award period.
. . . .
The opinion rendered in the Interlocutory Opinion concerning the
treatment regimen is unchanged. Defendant Employer has met its burden on this
issue and her treatment is found not reasonable and necessary for the cure and/or relief
of the effects of the work injury. The opinion of Dr. Kriss is persuasive that
ongoing opioids must be discontinued. The pain continues to rise in spite of
the drugs, or at least there is no evidence of any meaningful decrease in
either pain or disfunctionality [sic]. Continuation
under these conditions is neither reasonable or necessary. Dr. Kriss has
provided a specific weaning plan over 37 weeks to be implemented by Dr.
Ballard. He recommended Plaintiff be weaned off of Morphine over a nine-week
period, followed by Percocet over a nine-week period, followed by Hydrocodone
over a three-week period, followed by Flexeril over a nine-week period,
followed by Neurontin over a four-week period, and followed by Cymbalta over a
three-week period. Once Plaintiff was weaned from all her narcotics, she could
then discontinue Linzess and Relistor.
Likewise, continuation of injections and
rhizotomies is neither reasonable or necessary. Plaintiff’s relief, if any, has
been either insignificant or very short termed. Plaintiff testified that she
obtains two to six months of relief, but the treatment notes document a much
shorter benefit period. Roberts reported to Dr. Kriss that the prior treatments
only provided two days of relief. Dr. Kriss recommends against the lumbar
injections as there is no evidence of facet joint inflammation warranting
repeat injections. The medical evidence establishes that the proposed repeat
injections and repeat rhizotomies are neither reasonable nor necessary pursuant
to KRS 342.020 and, thus, they are found non-compensable.
Dr. Ballard did not believe in the
beginning of this dispute that a weaning from the medication regimen would be a
success. She now recommends everything from yog[a] to
swimming, to acupuncture to go along with a decrease in medication. Pursuant to
the opinion of Dr. Kriss, relied upon herein, we know what has not worked for
Plaintiff, continued high levels of medication, injections and rhizotomies.
These are no longer the responsibility of Defendant Employer. To be clear, this
is not a finding that no continued treatment is compensable. The opinion only
addresses that which is specifically contested.
Roberts
filed a petition for reconsideration, raising the same arguments she now raises
on appeal. In
her February 26, 2018 Order, the ALJ noted Drs. Kriss, Owen, and Tibbs all
assessed restrictions that fall in the light physical demand category. The ALJ again noted she found Dr. Kriss most
persuasive regarding the reasonableness of the current pain management. The ALJ amended the opinion to reflect that
the current impairment rating is 23%, but otherwise denied the petition for reconsideration.
DISCUSSION
Permanent
Total Disability
On
appeal, Roberts first argues the ALJ erred in concluding she is not permanently
totally disabled. She argues the ALJ’s
decision is arbitrary, and ignores, without explanation, the opinions of her
treating physicians and the FCE report, which establishes she is incapable of
even sedentary employment. Further, she
challenges the ALJ’s reliance on Dr. Kriss, whose substantive opinions were
generated in 2012 and 2013. Roberts
believes Dr. Kriss’ opinions were stale, irrelevant, and incompetent relative
to the treatment of her conditions at the time of the decision. Finally, if it is determined she is not
totally disabled, Roberts argues she is entitled to a 1.15 factor for the 23%
impairment rating.
As
the claimant in a workers’ compensation proceeding, Roberts
bore the burden of proving each of the essential elements of her cause of
action. Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979). Because she
was unsuccessful in proving a permanent total disability, 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)
superseded by statute on other grounds as stated in Haddock v.
Hopkinsville Coating Corp., 62 S.W.3d 387 (Ky. 2001).
Permanent
total disability is defined as the condition of an employee who, due to an
injury, has a permanent disability rating and a complete and permanent
inability to perform any type of work as a result of an injury. KRS 342.0011(11)(c). “Work” is defined as providing services to
another in return for remuneration on a regular and sustained basis in a
competitive economy. KRS 342.0011(34). In
determining whether a claimant is permanently and totally disabled, the ALJ is
required to consider a number of factors:
An analysis of the
factors set forth in KRS
342.0011(11)(b),
(11)(c), and (34) clearly requires an individualized determination of what the
worker is and is not able to do after recovering from the work injury.
Consistent with Osborne
v. Johnson, supra, it necessarily includes a consideration of factors such as the
worker's post-injury physical, emotional, intellectual, and vocational status
and how those factors interact. It also includes a consideration of the
likelihood that the particular worker would be able to find work consistently
under normal employment conditions. A worker's ability to do so is affected by
factors such as whether the individual will be able to work dependably and
whether the worker's physical restrictions will interfere with vocational
capabilities. The definition of “work” clearly contemplates that a worker is
not required to be homebound in order to be found to be
totally occupationally disabled.
Ira A. Watson, 34 S.W.3d. at 52.
Parties are
entitled to findings sufficient to inform them of the basis for the ALJ’s
decision to allow for meaningful review. Kentland Elkhorn
Coal Corp. v. Yates, 743 S.W.2d 47 (Ky. App. 1988); Shields v.
Pittsburgh and Midway Coal Mining Co., 634 S.W.2d 440 (Ky. App. 1982). The ALJ must adequately set forth the basic
facts upon which the ultimate conclusion was drawn so the parties are
reasonably apprised of the basis of the decision. Big Sandy Community Action Program v. Chafins, 502 S.W.2d 526 (Ky. 1973).
In
her brief to this Board, and in her arguments before the ALJ, Roberts has
presented a compelling case of her ongoing battle with chronic pain, and her
treating physicians’ efforts to control this pain. However, it is not within the province of
this Board to reweigh the proof, or to direct the ALJ to rely upon specific
portions of the evidence. Whittaker v.
Rowland, 998 S.W.2d 479, 481 (Ky. 1999). In order to reverse the decision of the ALJ, 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
ALJ articulated her consideration of the factors set forth in Ira A. Watson. She discussed Roberts’ work history and emotional
state, as well as her education and age.
The ALJ identified Roberts’ work restrictions as the most significant
factor weighing in favor of a finding of permanent total disability, and
concluded Roberts failed to establish she is incapable of any type of work. It is clear the ALJ considered Roberts’
physical restrictions, and concluded these restrictions do not prevent a return
to work in some capacity.
Roberts
has identified specific portions of the proof which would support a finding of
permanent total disability, such as the FCE report and the opinions of Drs.
Tibbs and Ballard. However, the ALJ is
not required to rely on any particular item of evidence. She summarized the FCE in her opinion, and it
cannot be concluded she summarily ignored the report. Likewise, in the Order on Reconsideration,
the ALJ acknowledged that Dr. Tibbs’ had suggested light duty work “in an
earlier report.” For this reason, we
cannot agree with Roberts that the ALJ failed to recognize Dr. Tibbs later
changed his opinion regarding her ability to return to work.
For these reasons, we are
simply unable to conclude the ALJ’s opinion must be vacated or reversed. The ALJ summarized and discussed the proof,
and reached a result supported by Dr. Kriss’ opinion. We are not at liberty to disturb that result. As a final matter, we find it necessary for
the sake of clarity to remand this matter for specific calculation of the
award, including provision of the 1.15 statutory factor and the three
multiplier. While the corresponding
statutory factor of 1.15 as set forth in KRS 342.730(1)(b) is implicit in the
ALJ’s finding of a 23% impairment rating, the amount of the award in the
decision on reopening cannot be determined without reference to the original
decision.
Medical Fee Dispute
Roberts next argues the
ALJ failed to adequately explain why she accepted Dr. Kriss’ opinion concerning
the appropriate treatment, over the opinions of Drs. Ballard and Nair. As Roberts acknowledges, the ALJ’s decision
is supported by Dr. Kriss’ opinion.
However, she asserts Dr. Kriss’ opinions are so outdated as to render
them irrelevant and unreliable.
Although Dr. Kriss did not offer the most
recent opinion, an ALJ is not required to accept the most recent evidence. The ALJ has the right to
accept any testimony and to believe or disbelieve various parts of the evidence,
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); Whittaker
v. Rowland, 998 S.W.2d 479 (Ky.
1999). Certainly,
the ALJ may consider the fact that some evidence is more recent, but the
recency of a medical opinion goes to the weight, not admissibility, of that
evidence. The essence
of Dr. Kriss’ opinion is that a five-year program of opioids, injections and
rhizotomies did not reduce Roberts’ pain, nor did it produce an increased level
of functioning. It is reasonable for
the ALJ to conclude additional years of the same treatment without a different
outcome would only reinforce his view of the ineffectiveness of that
treatment.
We
further note Dr. Ballard agreed that it is appropriate to consider acupuncture
and other non-medication courses of treatment, including yoga and
swimming. Dr. Kriss recommended use of
non-controlled-substance muscle relaxers and nonsteroidal anti-inflamatory agents, a tricyclic antidepressant, use of a
corset, and physical therapy with a home exercise program. As noted by the ALJ, Roberts had not been
weaned from narcotic medication by the time of her decision. Dr. Nair also recommended modalities that
have not been tried.
While
Roberts has identified evidence supporting a different conclusion, there was
substantial evidence presented to the contrary.
As such, the ALJ acted within her discretion to determine which evidence
to rely upon, and it cannot be said the ALJ’s conclusion in the medical dispute
is so unreasonable as to compel a different result. Ira A. Watson, id.
As
noted by the ALJ, Roberts is not foreclosed from future medical treatment, and
the decision concerns only the medical treatment currently contested. Thus, Roberts retains the right to seek
whatever treatment is appropriate in the future and OHI retains the right to
pursue any appropriate reopening to contest future treatment proposals if
circumstances require.
CONCLUSION
Accordingly,
the January 24, 2018 Opinion, Award and Order and the February 26, 2018 Order
rendered by Hon. Jane Rice Williams, Administrative Law Judge, are hereby AFFIRMED and REMANDED for entry of an amended award containing a calculation of
the permanent partial disability benefit.
ALL CONCUR.
COUNSEL FOR PETITIONER:
HON. ROY GRAY
331 SAINT CLAIR ST
FRANKFORT, KY 40601
COUNSEL FOR RESPONDENT:
HON. BRIAN WIMSATT
303 NORTH HURSTBOURNE
PARKWAY
SUITE 110
LOUISVILLE, KY 40222
MEDICAL PROVIDER:
THE PAIN TREATMENT
CENTER, INC.
280 PASADENA DR
LEXINGTON, KY 40503
ADMINISTRATIVE LAW JUDGE:
HON. JANE RICE WILLIAMS
ADMINISTRATIVE LAW
JUDGE
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
