Workers’
Compensation Board
OPINION ENTERED: February
26, 2019
CLAIM
NO. 200191697
DAVID
FARM, INC./LOWELL FARM, INC. PETITIONER
VS. APPEAL FROM HON. GRANT S. ROARK,
ADMINISTRATIVE
LAW JUDGE
CHRISTOPHER
GLAZEBROOK
DR.
DEBRA WALLACE
and
HON. GRANT S. ROARK,
ADMINISTRATIVE
LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and
RECHTER, Members.
STIVERS, Member. David Farm,
Inc./Lowell Farm, Inc. (“David Farm”) appeals from the September 17, 2018,
Opinion and Order and the October 19, 2018, Order on Petition for Reconsideration
of Hon. Grant S. Roark, Administrative Law Judge (“ALJ”). In the September 17,
2018, Opinion and Order, the ALJ resolved a medical fee dispute in favor of
Christopher Glazebrook (“Glazebrook”) by finding all contested medical
treatment compensable.
David
Farm asserts two arguments on appeal. First, it argues the ALJ erred when he determined
Glazebrook could be seen by Dr. Sean Wolfort, as it was not a contested issue
to be resolved by the ALJ. In a related argument, David Farm asserts the ALJ erred
in allowing Glazebrook to use a petition for reconsideration as an opportunity
for the ALJ to rule on an issue “not preserved for decision.”
BACKGROUND
The
Form 101 relating to the work injury in question alleges Glazebrook sustained
work-related injuries to his left foot and ankle, in the following manner:
“Plaintiff’s left foot went through a guard on a fertilizer spreader degloving
the foot from the arch back to the ankle.” Glazebrook was required to undergo
several tissue graft surgeries to treat his injury.
The parties settled the injury claim
via a Form 110 Settlement Agreement approved on September 15, 2004, by Hon.
James Kerr, Administrative Law Judge. The agreement indicates medical expenses
were paid in the amount of $116,492.35, temporary total disability (“TTD”)
benefits were paid in the total amount of $35,917.46, and Glazebrook received a
lump sum amount of $105,000.00 which included income benefits, a waiver of entitlement
to additional periods of TTD benefits, vocational rehabilitation, and the right
to reopen for increased impairment or disability. Glazebrook retained the right
to future medical benefits.
On
December 21, 2017, David Farm filed a Motion to Reopen and Form 112 Medical Fee
Dispute contesting the reasonableness and necessity of a request from Dr. Debra
Wallace for a referral to a plastic surgeon, Hydrocodone 7.5/325, Fluconazole
& Nystatin cream, continued pain management treatment with Dr. Winters[1],
and hyperbaric oxygen.[2]
Attached to the Motion to Reopen and Form 112 are several documents. One
document is the November 22, 2017, Physician Review Report of Dr. Bart Olash in
which he opines, in part, as follows:
I do not find indication
for referral to a plastic surgeon. In my opinion, a plastic surgeon would not
have anything to offer. The patient is already being seen by a wound care
specialist, orthopedic surgeon, and infectious disease specialist. These physicians
should be able to reasonably treat his skin and soft tissue pathology due to
the work accident.
The
record also contains Dr. Frank Parker’s December 6, 2017, Final Utilization
Review Decision in which he opines, in relevant part, as follows:
The plastic surgeon’s
role in wound healing is to create a flap to cover a wound once infection is
eliminated. The medical record reveals that this patient’s orthopedic surgeon
has a plan for debridement and antibiotics to insure wound infection is
controlled by eliminating non-viable bone and tissue. In my opinion, a referral
to plastic surgery should be delayed until infection is eliminated from this
patient’s wounds.
On
March 19, 2018, Glazebrook filed an undated letter from Dr. Wallace which reads
as follows:
I am
Christopher Glazebrook’s primary care physician.
I
have reviewed the Utilization Review Report of Bart Olash of November 22, 2017,
and I disagree with some of his opinions.
I
believe a referral to a plastic surgeon is a reasonable referral. Mr.
Glazebrook has a difficult wound to treat and it is reasonable to obtain the
opinion of a plastic surgeon to determine what, if any, reconstruction, could
be done to Mr. Glazebrook’s foot and ankle to help alleviate the continuous
wound problems he has.
I
also believe Mr. Glazebrook is in need of long term pain medicines. The fact
that he tests positive for THC is irrelevant to the need for pain medicines. It
is my understanding that the urine screens show that Mr. Glazebrook is not
abusing his narcotics and therefore, continued use of the narcotics is
appropriate. Over the counter analgesics will not suffice in his pain
management.
I
would also be hesitant to withdraw any of Mr. Glazebrook’s antibiotics for fear
of the great risk of allowing an infection in his foot and ankle.
I agree that Mr. Glazebrook would benefit from a referral to Dr.
Sean Wolfort in Phoenix, Arizona. Dr. Wolfort treated Mr. Glazebrook at
Vanderbilt and the peculiar nature of Mr. Glazebrook’s wound coupled with Dr.
Wolfort’s expertise and familiarity with the history justifies that referral. (emphasis added).
On
May 21, 2018, David Farm filed a “Notice to Supplement Form 112” in which it
attached the December 5, 2017, Physician Review Appeal Report of Dr. Parker who
states, in relevant part, as follows:
The
plastic surgeon’s role in wound healing is to create a flap to cover a wound
once infection is eliminated. The medical record reveals that this patient’s
orthopedic surgeon has a plan for debridement and antibiotics to insure wound
infection is controlled by eliminating non-viable bone and tissue. In my
opinion, a referral to plastic surgery should be delayed until infection is
eliminated from this patient’s wounds.
Most plastic surgeons
will not perform a flap procedure while a patient is smoking cigarettes. This
patient has experienced failure of his initial skin flap. In my opinion, any
skin graft in this patient is in peril unless he stops smoking.
…
In my opinion, the
medical records reveal the request from Dr. Wallace for referral to a plastic
surgeon is not medically reasonable or necessary for the treatment or relief of
the work injury of 4/24/2001.
In
Dr. Parker’s summary of the medical records reviewed, the following is noted
regarding a November 1, 2017, office visit with Dr. Wallace: “Assessment:
cellulitis left foot, non-healing wound of lower extremity…previous plastic surgeon referral needed…Orthop. Surgeon in
this area have refuse [sic] to do any further treatment.” (emphasis added).
The
record reflects a Benefit Review Conference (“BRC”) was not conducted. The
parties agreed to waive a formal hearing and the record contains no briefs for the
ALJ to review.
In
the September 17, 2018, Opinion and Order, the ALJ set forth the following
findings of fact and conclusions of law concerning the reasonableness and
necessity of the referral to a plastic surgeon:
Moreover, Dr. Olash
concluded referral to a plastic surgeon would not be necessary because
plaintiff is already saying [sic] enough specialists who should be able to
adequately treat his injury and that a plastic surgeon would have nothing
additional to offer. Yet the defendant employer’s other utilization review
expert, Dr. Parker, indicated only that referral to a plastic surgeon should be
delayed until all infections have been eliminated from the foot, at which time
a plastic surgeon could determine how best to reconstruct the damaged areas of
the foot. For these reasons, and because Dr. Wallace opined referral to a
plastic surgeon would be reasonable in plaintiff’s situation, it is determined
the defendant employer has not carried its burden of proving [sic] referral to
a plastic surgeon is not reasonable or necessary. As such, that referral is
compensable.
Glazebrook
filed a “Motion for Clarification/Petition for Reconsideration” on October 1,
2018, in which he states as follows:
Plaintiff,
Christopher R. Glazebrook, requests that the ALJ clarify the finding in his
September 17, 2018, Opinion granting the referral to a plastic surgeon. To the
extent, necessary, this Motion may be considered a Petition for
Reconsideration. However, it is simply filed to avoid another lengthy separate
filing on the key issue at hand.
Plaintiff
was treated in the past by Dr. Sean Wolfort at Vanderbilt. However, Dr. Wolfort
left Vanderbilt and relocated to Phoenix, Arizona. Dr. Wallace, in her report
of record filed March 19, 2018, stated that she believes that a referral to Dr.
Wolfort is appropriate. Dr. Wolfort is a specialist in this area and familiar
with the patient’s history. It should be noted that this is an atypical injury
claim consisting of a devastating degloving of Plaintiff’s foot and ankle soft
tissues. Absent a specific finding by the ALJ, Plaintiff does not believe that
Defendant-employer’s carrier will acknowledge and pay for the referral to Dr.
Wolfort.
Plaintiff requests that
the ALJ clarify his Opinion to state specifically that the referral to Dr.
Wolfort in Phoenix, Arizona is reasonable and necessary for the cure and relief
of the injury.
In
the October 19, 2018, Order, the ALJ held as follows:
This matter comes before the Administrative Law
Judge upon the plaintiff’s petition for reconsideration of the Opinion &
Order rendered in this matter on September 17, 2018. In his petition, plaintiff
requests clarification and for the ALJ to specify that the defendant employer
is obligated to authorize a referral to Dr. Sean Wolfort of Phoenix, Arizona.
In its response, the defendant employer argues the issue before the ALJ in this
reopening was whether referral to a plastic surgeon, in general, was reasonable
and necessary; a specific referral to Dr. Wolfort was not at issue.
Having reviewed the matter, the ALJ is persuaded
this reopening -- as to the referral -- was precipitated by Dr. Wallace’s
referral to Wolfort. Only after Dr. Wallace indicated referral to Dr. Wolfort
in Phoenix would be appropriate did the defendant supplement the 112 to
challenge that referral, even though it did not specifically mention Dr.
Wolfort in the supplemental 112. Moreover, given that if the matter is not now
decided and the defendant employer refuses to voluntarily authorize referral to
Dr. Wolfort in Arizona, then either it will be obligated to file a new medical
fee dispute or the plaintiff will file one to decide the issue. Either scenario
would be a waste of resources since the matter can be disposed of now. As such,
the ALJ agrees the matter was/is before the ALJ and that it makes sense to decide
it now.
As to the merits of the issue, the ALJ is persuaded
the specific issue was whether the referral to Dr. Wolfort in Arizona is
reasonable and necessary, again because that was what precipitated the
defendant employer’s supplemental Form 112. For the reasons set forth in the
September 17, 2018 Opinion, the ALJ remains persuaded by Dr. Wallace’s report
that her referral to the plastic surgeon, Dr. Wolfort, is reasonable and
necessary. Obviously, if Dr. Wallace is willing to refer plaintiff to a closer
plastic surgeon whom she believes is just as capable as Dr. Wolfort, then the
matter could be considered anew. Yet, as the matter stands, the defendant shall
approve and pay for referral to Dr. Wolfort in Phoenix, Arizona, and the
plaintiff’s petition for reconsideration is therefore SUSTAINED.
ANALYSIS
As
an initial matter, we note 803 KAR 25:010 reads, in relevant part, as follows:
Section 13. Benefit Review
Conferences. (1) The purpose of the BRC shall be to expedite the processing of
the claim and to avoid if possible the need for a hearing.
(2) The BRC shall be an informal
proceeding.
…
(11) If at the conclusion of the
BRC the parties have not reached agreement on all the issues, the
administrative law judge shall:
(a) Prepare a final BRC
memorandum and order including stipulations and identification of all issues,
which shall be signed by all parties or if represented, their counsel, and the
administrative law judge; and
(b) Schedule a final hearing.
(12) Only contested issues shall
be the subject of further proceedings.
Contrary
to David Farm’s assertion, there were no issues preserved for review as the
record reflects a BRC was not conducted. Thus, David Farm relinquished its
right to identify the contested issues to be resolved by the ALJ.
David
Farm first argues the ALJ erred when, in response to Glazebrook’s Petition for
Reconsideration, he ruled on the reasonableness and necessity of a specific
referral to Dr. Wolfort in Phoenix, Arizona instead of allowing a general
referral to a plastic surgeon, which was one of the contested issues before him.
In
Dr. Wallace’s undated letter, filed on March 19, 2018, she directly addressed the
benefit Glazebrook would derive from a referral to Dr. Wolfort in Phoenix,
Arizona. Dr. Wallace opined a referral is justified because of Dr. Wolfort’s expertise, he treated Glazebrook
at Vanderbilt and he is familiar with the peculiar nature of Glazebrook’s wound. At no point after Dr. Wallace’s letter
was filed in the record did David Farm file an objection or a motion to strike that
portion of her letter expressing her opinion regarding the need for a specific
referral to Dr. Wolfort. In fact, David Farm filed a “Notice to Supplement Form
112” on May 21, 2018, two months after Glazebrook filed Dr. Wallace’s
letter in the record, in which it failed to address the specific referral to
Dr. Wolfort. This is despite the fact that, in the
December 5, 2017, Physician Review Appeal Report which David Farm attached to
the “Notice to Supplement Form 112,” Dr. Parker appeared to have reviewed
something from Dr. Wallace indicating “previous
plastic surgeon referral needed.” (emphasis added).
We
conclude one could reasonably expect that, in the interest of judicial economy
and a speedy resolution of the medical fee dispute, the ALJ would fully resolve
all intertwined issues which surfaced in this
medical fee dispute. By not addressing the specific referral to Dr. Wolfort in
this medical fee dispute, the ALJ would have created a scenario requiring the
filing of another medical fee dispute immediately after rendition of his
decision in this dispute. We fail to see how such a scenario would be
reasonable, particularly since David Farm had been on notice of the specific
referral to Dr. Wolfort by Dr. Wallace since her letter was filed in the record
on March 19, 2018, nearly six months
before the September 17, 2018, Opinion and Order. As previously noted, contrary
to David Farm’s assertion, the record demonstrates there were no issues
preserved for review as the record is devoid of a BRC identifying the contested
issues to be decided by the ALJ. Moreover, in light of the contents of Dr.
Wallace’s undated letter, David Farm could hardly be surprised the ALJ chose,
albeit in an order addressing a Petition for Reconsideration, to determine
whether a referral to Dr. Wolfort was reasonable and necessary. In short,
absent the parties identifying the contested issues in a BRC, David Farm’s
argument that the ALJ addressed an issue not preserved for a decision fails. The
ALJ did not err by ruling on the reasonableness and necessity of the referral
to Dr. Wolfort.
Next, David Farm asserts the ALJ erred by
permitting Glazebrook, in his petition for reconsideration, to request a ruling
on the referral to Dr. Wolfort when the issue had not been preserved for
adjudication. David Farm also notes the purpose of a petition for
reconsideration is to point out patent errors and not “obtain [a] ruling on an
issue on which evidence was not presented.”
Significantly, a BRC Order was not filed in
the record, and by agreement of the parties, the formal hearing was waived.[3]
Also, briefs were not filed. Thus, the ALJ was left to discern the contested
issues without any help from the parties. However, as previously stated, the
specific referral to Dr. Wolfort was made an issue by virtue of Dr. Wallace’s
letter placed in the record on March 19, 2018. We acknowledge the ALJ
determined the referral to Dr. Wolfort was reasonable and necessary in the
October 19, 2018, Order in response to Glazebrook’s October 1, 2018, Motion for
Clarification/Petition for Reconsideration. Although Glazebrook did not reference
a patent error in the original September 17, 2018, Opinion and Order, we
believe one of the issues before the ALJ was whether Glazebrook should see Dr.
Wolfort. Thus, the Petition for Reconsideration pointed out an issue the ALJ
failed to resolve. Glazebrook sustained a highly specific and egregious wound, and
there is no question Dr. Wolfort previously treated Glazebrook and is uniquely qualified to address his care. Consequently,
Glazebrook was pointing out an aspect of the medical dispute the ALJ failed to
address. We attach great significance to the fact that in his summary of Dr.
Wallace’s testimony, the ALJ stated as follows:
Dr. Debra Wallace being
Glazebrook’s primary care physician states that in her opinion the referral to
the plastic surgeon, Dr. Sean Wolfort, could assist with the difficulty in
treating the wound, he could possibly determine what, if any, reconstruction
could be done to Glazebrook’s foot and ankle, to help alleviate the continuing
problems.
…
She also indicated plaintiff would benefit from a referral
to Dr. Sean Wolfort in Phoenix, Arizona. Dr. Wolfort treated plaintiff at
Vanderbilt and the peculiar nature of plaintiff’s one combined with Dr.
Wolfort’s expertise and familiarity with the history justifies that referral.
In resolving this issue, the ALJ ruled in
favor of Glazebrook due to Dr. Parker’s opinion that a referral to a plastic
surgeon should be delayed until all infection had been eliminated and “because
Dr. Wallace opined referral to a plastic surgeon would be reasonable in
[Glazebrook’s] situation.” Given the ALJ’s summary of Dr. Wallace’s testimony
and his partial reliance upon her in resolving the issue of whether Glazebrook
should be referred to a plastic surgeon, David Farm should not have been
surprised that the ALJ believed the referral to Dr. Wolfort was one of the
contested issues. The ALJ’s resolution of this issue in full was reasonable and appropriate, and it will not be
disturbed by this Board.
Accordingly,
the September 17, 2018, Opinion and Order and the October 19, 2018, Order are AFFIRMED.
ALL
CONCUR.
DISTRIBUTION:
COUNSEL FOR PETITIONER:
HON
R CHRISTION HUTSON LMS
P
O BOX 995
PADUCAH
KY 42002-0995
COUNSEL FOR RESPONDENT:
HON
J CHRISTOPHER HOPGOOD LMS
318
SECOND ST
HENDERSON
KY 42420
RESPONDENT:
DR
DEBRA WALLACE USPS
1284
US 60 W
MORGANFIELD
KY 42437
ADMINISTRATIVE LAW
JUDGE:
HON
GRANT S ROARK LMS
657
CHAMBERLIN AVE
FRANKFORT
KY 40601