Opinion
2024-CA-0122-WC
10-18-2024
JUDY HOWELL APPELLANT v. FLOYD COUNTY BOARD OF EDUCATION; DR. CASSANDRA GARRETT; HONORABLE CHRIS DAVIS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Thomas W. Moak Prestonsburg, Kentucky BRIEF FOR APPELLEE FLOYD COUNTY BOARD OF EDUCATION: W. Barry Lewis Hazard, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-93-07353
BRIEF FOR APPELLANT: Thomas W. Moak Prestonsburg, Kentucky
BRIEF FOR APPELLEE FLOYD COUNTY BOARD OF EDUCATION: W. Barry Lewis Hazard, Kentucky
BEFORE: COMBS, A. JONES, AND KAREM, JUDGES.
OPINION
JONES, A., JUDGE
In the underlying workers' compensation medical dispute between Judy Howell and her former employer, Floyd County Board of Education ("Floyd County"), an administrative law judge ("ALJ") entered an order finding Howell's prescription for hydrocodone non-compensable but allowing Howell a weaning period from the drug. Howell appealed that finding to the Workers' Compensation Board ("Board"), which affirmed. Now, on review before this Court, Howell's arguments are two-fold. First, she argues the evidence she adduced below sufficiently demonstrated that her prescription for hydrocodone should have remained compensable. Second, she contends statutory and regulatory provisions that were operative below - namely, Kentucky Revised Statute (KRS) 342.035(8)(a)-(b) and 803 Kentucky Administrative Regulations (KAR) 25:260 and:270 - unconstitutionally precluded her from continuing to receive hydrocodone for the treatment and relief of her work-related chronic pain. Upon our review, we affirm.
I. Background
The facts relevant to this appeal are not in dispute. Howell was born in 1946. She sustained a work-related injury to her lumbar spine in 1993 while employed by Floyd County, and consequently received a workers' compensation award on July 2, 1995. In 2015, Floyd County filed a medical dispute contesting Howell's continued prescription for hydrocodone, but the ALJ in that matter ultimately concluded her prescription was reasonable and necessary treatment for Howell's work injury and thus compensable. Floyd County did not appeal. On November 30, 2022, Floyd County then filed the underlying medical dispute claiming, again, that Howell's prescription for hydrocodone was non-compensable.
The evidence adduced thereafter was, in summary, as follows. Howell testified she continued to have back pain and stated, "It hurts from my back all the way down in my right leg. That's why I have to walk with a walker." As to her leg, she explained, "It's just like pins and needles sticking into me." She takes hydrocodone in the morning and at night, and has taken pain medicine since the injury because, as she represents, it eases the pain and helps her move around. She testified that if she did not have it, she would not be moving at all.
Howell's hydrocodone is prescribed by Dr. Cassandra Garrett. Howell sees her every three months, and she introduced medical records from Dr. Garrett from January 25, 2021 through July 16, 2021, and from January 5, 2022 through October 25, 2022. Dr. Garrett questions Howell regarding her pain and whether it interferes with her daily living activities, and Howell represents that her pain level is always about a "7" on a scale to 10. She stated she has never told Dr. Garrett that the hydrocodone is not as effective as it used to be, or that she has wanted to change medications. Dr. Garrett also prepared a treatment plan for Howell, dated February 8, 2023. Regarding the need for Howell's prescription regimen, Dr. Garrett stated, "She has been on these medications for pain since her injury in 1993." Regarding the projected period of future treatment, Dr. Garrett wrote, "Lifetime." Finally, Dr. Garrett completed a "statement of exceptions" to the "ODG" on March 17, 2023. The "ODG" - or self-named "Official Disability Guidelines for Treatment of Workers Comp" - is a set of evidence-based disability guidelines Kentucky has recently adopted for workers' compensation purposes. In her "statement of exceptions," Dr. Garrett noted Howell has a chronic condition that requires individualized treatment.
The ODG compiles and reports disability duration and return to work data emanating from four federal databases. Ranavaya v. Work Loss Data Institute, LLC, Civ. No. 2:05-0109, 2006 WL 2469113, at *1 (S.D. W.Va. Aug. 24, 2006). ODG is owned by a for-profit entity. It was published by Work Loss Data Institute, LLC ("WLDI"). Id. ODG is sold by WLDI on a subscription basis, and WLDI licenses the ODG for internal case management and claims systems. Electronic Waveform Lab Inc. v. Work-Loss Data Institute, LLC, Civ. No. SACV 150794 AG(AGRx), 2015 WL 12684232, at *1 (C.D. Cal. Aug. 25, 2015). Insurance carriers use the ODG entries to determine whether to cover certain treatments. Id. In 2017, WLDI was acquired by Hearst and then became part of MCG Health. See MCG, Our History www.mcg.com/odg/about-odg/our-history-work-loss-data-institute/ (last accessed Aug. 22, 2024).
Floyd County, for its part, filed a utilization report from Dr. Zaid Fadul, dated November 9, 2022, along with a letter of denial in support of its motion to reopen Howell's claim. Dr. Fadul did not believe hydrocodone was medically reasonable or necessary. To that point, he explained:
[T]he use of short acting opiates or narcotic medications can be an option for the treatment of acute or chronic musculoskeletal pain when 1st line medications have been attempted and are not effective. The current evidence based guidelines do not recommend long term use of this medication class due to the lack of evidence these medications are effective in relieving pain over the long term vs. the risks involved with their use to include dependency and abuse. The clinical records did not
clearly demonstrate the extent of pain relief or functional improvement with the ongoing use of [h]ydrocodone. The claimant still reported high levels of pain despite medications. Given these issues which do not meet guideline recommendations, this reviewer cannot recommend certification for the ongoing use of this opiate medication.
Dr. Fadul indicated in his report that the "current evidence based guidelines" and "guideline recommendations" he was referencing derived from the ODG. His report quoted the applicable guidelines.
Floyd County also introduced a February 1, 2023 report from Dr. Rafid Kakel, who performed a medical file review. Dr. Kakel diagnosed L4-L5 and L5-S1 disc herniation status post discectomy. He also did not believe hydrocodone was medically reasonable or necessary. The question-and-answer section of his report relevant to that issue provided:
4. The Commissioner of the Kentucky Department of Workers' Claims (DWC) has promulgated an administrative regulation (803 KAR 25:260) adopting the ODG by MCG Health treatment guidelines for use in the treatment of work-related injuries. Treatment options in the guidelines are generally designated as either "Recommended," "Not Recommended," or "Conditionally Recommended." What is the designation by the ODG for [h]ydrocodone as it relates to this case?
Hydrocodone is not recommended for treatment as it relates to this claim. In my view, the ongoing use of this medication is not indicated. The Official Disability Guidelines do not recommend this medication as a first-line option, noting evidence shows inconclusive benefit,
lack of benefit, or potential harm. There are major adverse effects of opioids such as this including "physical dependence, tolerance, addiction (opioid use disorder), and death" and "other side effects include fatigue, cognitive dysfunction, somnolence, constipation, nausea, dry mouth, sweating, pruritis, respiratory depression, delayed gastric emptying, sexual dysfunction, muscle rigidity, sleep disturbance, hyperalgesia, and opioid-induced endocrinopathy (with androgen deficiency)." Additionally, "opioids may also contribute to cardiac-related deaths and other fatalities and have been shown to significantly increase the risk of all-cause mortality including deaths from causes other than overdose." Furthermore, opioids are not recommended for neuropathic pain or osteoarthritis or for chronic low back pain. Most commonly, opiates are used for very short term postoperative or posttraumatic events of less than 6 weeks. This is delineated in the ODG criteria, and there are alternatives to opioids that can be used. After short-term use, the efficacy in any case tends to diminish. I would additionally note that the claimant still reported high pain levels despite taking this medication; thus, the efficacy of this medication is unclear. In consideration of the diagnoses related to this claim, the treatment provided to date, and the time period since the work injury, in my view the ongoing use of hydrocodone is not supported as necessary or appropriate in relationship to this claim.
Following the close of evidence, the ALJ found in favor of Floyd County. In his June 17, 2023 opinion and order to that effect, the ALJ explained in relevant part:
The remaining question is if Ms. Howell's testimony and Dr. Garrett's statements overcome the not recommended status of the [h]ydrocodone. I find that they do not. While, for what it is worth, I sympathize with both of them the current standard as applied herein is that the ODG creates a rebuttable presumption, which
Ms. Howell must overcome. While I understand that Dr. Garrett and Ms. Howell refer to her pain and her need to function it can be presumed that every doctor who prescribes [h]ydrocodone thinks their patient is in severe pain yet, in most cases, its use would not be approved long term. Given the side effects and the failure to address or consider alternative pain control methods I cannot find the presumption overcome and the [h]ydrocodone is non-compensable.
The ALJ denied Howell's subsequent petition for reconsideration. Howell then appealed to the Board, which affirmed the ALJ's determination regarding the compensability of her hydrocodone for the reasons set forth in our analysis below. This appeal followed.
II. Standard of Review
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). 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 substantive 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 Dep't 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 inferences that otherwise could have been drawn from the evidence. Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999). The role of the Court of Appeals in reviewing the Board is "to correct the Board only where [the] Court perceives the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice." W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). Further review from this Court is limited to addressing "new or novel questions of statutory construction, or to reconsider precedent when such appears necessary, or to review a question of constitutional magnitude." Id. at 688.
III. Analysis
1. Constitutional questions
As stated, Howell contends that KRS 342.035(8)(a)-(b) and 803 KAR 25:260 and:270 unconstitutionally precluded her from continuing to receive hydrocodone for the treatment and relief of her work-related chronic pain. This was a point that the ALJ and Board were precluded from addressing below. See Blue Diamond Coal Co. v. Cornett, 300 Ky. 647, 189 S.W.2d 963, 965 (1945) (explaining administrative tribunals lack the judicial power of our courts); Kenton & Campbell Benev. Burial Ass'n v. Goodpaster, 304 Ky. 233, 200 S.W.2d 120, 126 (1946) (explaining it is the prerogative of the courts to assess the constitutionality of legislative action).
Before delving into the specifics of her arguments, some context is required. 803 KAR 25:260 and:270 became effective on September 1, 2020, and were promulgated in response to the following directives of KRS 342.035(8):
(a) The commissioner shall develop or adopt practice parameters or evidence-based treatment guidelines for medical treatment for use by medical providers under this chapter, including but not limited to chronic pain management treatment and opioid use, and promulgate administrative regulations in order to implement the developed or adopted practice parameters or evidenced-based treatment guidelines on or before December 31, 2019. The commissioner may adopt any parameters for medical treatment as developed and updated by the federal Agency for Health Care Policy Research, or the commissioner may adopt other parameters for medical
treatment which are developed by qualified bodies, as determined by the commissioner, with periodic updating based on data collected during the application of the parameters.
(b) The commissioner shall develop or adopt a pharmaceutical formulary for medications prescribed for the cure of and relief from the effects of a work injury or occupational disease and promulgate administrative regulations to implement the developed or adopted pharmaceutical formulary on or before December 31, 2018.
In its analysis, the Board discussed the recent regulatory adoption of the ODG guidelines under the auspices of KRS 342.035(8)(a), and what the Board has characterized in its administrative precedent as the "de facto" impact that the adoption of those guidelines has had upon the burden of proof in workers' compensation proceedings. Because the Board's discussion in that regard is particularly germane to the primary contentions of this appeal, it is set forth below:
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). Similarly, the employer has the burden of proving any allegation that the treatment in question is not work-related. The Kentucky Supreme Court in C &T of Hazard v. Stollings, 2012-SC-000834-WC, rendered October 24, 2013, Designated Not To Be Published, explained as follows:
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.
More recently, in Conifer Health v. Frieda Singleton, 2020-SC-0609-WC, rendered September 30, 2021, Designated Not To Be Published, the Supreme Court held as follows: "The burden in a medical fee dispute is upon the employer to show that the expenses were unreasonable, unnecessary, and unrelated to the work injury." Slip Op. at 14.
803 KAR 25:260 specifically states in Section 5, "The treatment guidelines apply to all treatment administered on and after September 1, 2020." 803 KAR 25:260 Section 1(12)(a) states as follows:
(a) "Medically necessary" or "medical necessity" means healthcare services,
including medications, that a medical provider, exercising prudent clinical judgment, would provide to a patient for the purpose of preventing, evaluating, diagnosing or treating an illness, injury, disease or its symptoms, and that are:
1. In accordance with generally accepted standards of medical practice;
2. Clinically appropriate, in terms of type, frequency, extent, site and duration; and
3. Considered effective for the patient's illness, injury, or disease.
Section 1(16) states, "'Treatment guidelines' or 'guidelines' are the treatment guidelines developed or adopted by the commissioner pursuant to KRS 342.035(8)(a)." Section 3(1)-(9) reference the application of the ODG, and specifically provide as follows:
Section 3.
Application
(1) The treatment guidelines do not apply to treatment provided in a medical emergency.
(2) The treatment guidelines do not apply to urine drug screens. KRS 342.020(13) governs an employer's liability for urine drug screens.
(3) The treatment guidelines shall be applied in the utilization review decision-making process.
(4) Treatment designated as "Recommended" under the guidelines shall be presumed reasonable and necessary and shall not require preauthorization. This presumption shall apply to utilization review and in the resolution of medical disputes. This presumption shall be rebuttable only by clear and convincing evidence.
(5) If a medical provider seeks preauthorization for treatment designated as "Conditionally Recommended" and furnishes sound medical reasoning in support of undertaking that treatment, a medical payment obligor shall consider and address that sound medical reasoning and shall not deny preauthorization solely on the basis that conditions precedent have not been met. The failure of a medical payment obligor to comply with the time requirements in 803 KAR 25:190, Section 5(2) and (3) may result in sanctions.
(6) Treatment designated as "Not Recommended" under the guidelines or not addressed in the guidelines shall require preauthorization.
(7) The employer shall not be responsible for payment of medical treatment designated as "Not Recommended" under the guidelines or not addressed in the treatment guidelines unless it was:
(a) Provided in a medical emergency;
(b) Authorized by the medical payment obligor; or
(c) Approved through the dispute resolution process by an administrative law judge.
(8) Medical providers proposing treatment designated as "Not Recommended" under the guidelines or not addressed in the treatment guidelines shall articulate in writing sound medical reasoning for the proposed treatment, which may include:
(a) Documentation that reasonable treatment options allowable in the guidelines have been adequately trialed and failed;
(b) The clinical rationale that justifies the proposed treatment plan, including criteria that will constitute a clinically meaningful benefit; or
(c) Any other circumstances that reasonably preclude recommended or approved treatment options.
(9) Sound medical reasoning furnished by a medical provider shall be considered before preauthorization of treatment may be denied.
(10) The treatment guidelines are not intended to establish a standard for determining professional liability. The guidelines are not a standard or mandate. Exceptions to and the proper application of the guidelines require assessment of each individual course of treatment.
(11) The pharmaceutical formulary adopted in 803 KAR 25:270 shall be part of the medical treatment guidelines.
(12) Maximum medical improvement shall not preclude the provision of medical treatment necessary for the cure and relief from the effects of an injury or occupational disease if the treatment is medically necessary to maintain function at the maximum medical improvement level or to improve function following an exacerbation of the injured employee's condition.
When overriding the ODG recommendation, a sound medical opinion supporting such deviation is required. 803 KAR 25:260 Sec. 3 specifically provides the steps necessary to overcome such presumption. For approval of treatment that is not recommended by the ODG, medical providers must articulate in writing sound medical reasoning establishing why it is necessary.
The Board has consistently treated the ODG as comparable to a University Evaluator's opinion. See Pine Branch Mining v. Napier, Claim No. 2016-88185, rendered Dec. 2, 2022; Woodman Three Mine v. Hess, Claim No. 2018-01427, rendered Dec. 9, 2022; Dags Branch Coal v. Blankenship, Claim No. 2016-00736, rendered Jan. 5, 2023; LS Group v. Weir, Claim No. 2008-94208, rendered Jan. 27, 2023; Monticello Flooring &Lumber v. Stinson, Claim No. 2013-67044, Opinions rendered on Mar. 17, 2023 and Dec. 1, 2023; and Perry County Health Dep't v. Miller, Claim No. 1994-51177, rendered Mar. 17, 2023.
While 803 KAR 25:260 does not specifically state the ODG constitutes presumptive weight, it de facto has such effect. As this Board has frequently held, while KRS 342.315(2) creates a rebuttable presumption, it does not prohibit the fact-finder from rejecting a finding or opinion of a university evaluator. Magic Coal Co. v. Fox, 19 S.W.3d 88, 94-95 (Ky. 2000). It simply requires the ALJ to specifically state the reasons for doing so. Id.; KRS 342.315(2). This statutory provision does not alter the claimant's burden of persuasion but, "[t]o the extent that the university evaluator's testimony favors a particular party, it shifts to the opponent the burden of going forward with evidence which rebuts the testimony. If the opponent fails to do so, the party whom the testimony favors is entitled to prevail by operation of the presumption." Magic Coal, supra, at 96. Accordingly, "clinical findings and opinions of the university evaluator constitute substantial evidence with regard to medical questions which, if uncontradicted, may not be disregarded by the fact-finder." Id.
KRS 342.315(2) is properly governed by KRE 301 which provides as follows:
In all civil actions and proceedings when not otherwise provided for by statute or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.Magic Coal Co. v. Fox, supra, at 95.
An ALJ has the discretion to reject the University Evaluator's testimony where it is determined the presumption has been overcome by other evidence and the reasons for doing so are expressly stated within the body of the decision. Bullock v. Goodwill Coal Co., 214 S.W.3d 890, 891 (Ky. 2007).
The same rationale is true regarding the presumption created by ODG. When overriding the ODG, a sound medical opinion supporting such deviation is required. 803 KAR 25:260 Sec. 3 specifically provides the steps necessary to overcome such presumption. For
approval of treatment that is not recommended by the ODG, medical providers must articulate in writing the sound medical reasoning why this treatment is necessary, and the provider must outline the clinical rationale for continuing with such treatment.
We have recognized there are instances when treatment notes alone are of such clarity and sufficiency an ALJ may rely on them to find compensability of future treatment that is later contested. See Perry County Health Dep't v. Miller, supra (where we held a treatment plan constituted sufficient evidence to rebut the ODG); but see Monticello Flooring &Lumber v. Stinson, supra (where general comments regarding partial pain relief contained in treatment notes dated prior to the utilization review did not constitute sound medical reasoning to overcome the ODG recommendation).
Applying the law as set forth above to the medical fee dispute, the Board began by observing the ODG guidelines provided hydrocodone was "NR" or "Not Recommended" for the type of chronic pain Howell complained of. Accordingly, the Board proceeded to what it deemed were the dispositive issues: (1) whether the ALJ erred in determining that Howell's evidence did not constitute the "sound medical reasoning" necessary to overcome the ODG recommendation; and if so, (2) whether Howell's evidence favoring her continued use of the drug, when contrasted with Floyd County's evidence that hydrocodone was not reasonable or necessary treatment for Howell's work injury, compelled a different result. Following a review of the evidence set forth above, the Board found the ALJ did not err or otherwise abuse his discretion in finding Howell's prescription for hydrocodone non-compensable.
Howell is not arguing to this Court, nor do we find, that the Board's interpretation of 803 KAR 25:260 and:270 set forth above was incorrect or unreasonable. Her arguments instead involve what she asserts is the constitutional invalidity or inapplicability of those regulations.
a. Constitutional invalidity
Howell's first two constitutional arguments are, in the words of her brief, as follows:
[T]he Kentucky Legislature has no authority to delegate that medical decisions involving injured workers be governed by [the ODG]. The[re] is no rational basis which justifies requiring treating physicians to follow [the ODG]. Such blatant discrimination violates constitutional protections recognized in Parker v. Webster County Coal, 529 S.W.3d 759 (Ky. App. 2017) and Vision Mining v. Gardner, 364 S.W.3d 455 (Ky. 2011).Brief at 6.
We begin with Howell's bare contention that "the Kentucky Legislature has no authority to delegate that medical decisions involving injured workers be governed by [the ODG]." This seems to be an assertion that our General Assembly lacks authority to adopt, or by extension authorize an administrative agency to adopt, evidence-based guidelines promulgated by an outside entity.
We disagree. The General Assembly, by and through the Commissioner of the Kentucky Department of Workers' Claims ("Commissioner"), has adopted a set of standards promulgated by the ODG with which evidentiary materials in workers' compensation proceedings must comply; and it is well within the General Assembly's prerogative to determine the rules of evidence in this administrative context, or to delegate that function to the Commissioner. See, e.g., 803 KAR 25:010 § 14(1). To the extent Howell is asserting our General Assembly lacks authority to adopt or authorize an administrative agency to adopt guidelines promulgated by an outside entity, she cites no authority favoring that proposition; and in any event she is incorrect. Statutes may, by analogy, adopt laws or regulations of other states, the federal government, or any of the federal government's agencies that are effective at the time of adoption. See, e.g., Dawson v. Hamilton, 314 S.W.2d 532, 535 (Ky. 1958).
Howell's second constitutional argument is that "[t]he[re] is no rational basis which justifies requiring treating physicians to follow [the ODG]" and that "such blatant discrimination violates constitutional protections." Howell bases this argument upon equal protection precedent but fails to explain how equal protection principles have been violated in this instance. Nothing put forth by Howell's argument indicates governmental decision-makers have treated or classified similarly situated persons differently; additionally, Howell fails to offer any coherent argument supporting that the adoption of the guidelines was not at least rationally related to a legitimate state interest. Absent any such argument, we will not assume an equal protection violation occurred. "[A]cts of the legislature carry a strong presumption of constitutionality[.]" Wynn v. Ibold, Inc., 969 S.W.2d 695, 696 (Ky. 1998). It is not our obligation to construct Howell's arguments or search the record to find support for her contentions, even assuming support exists. See Young v. Newsome, 462 S.W.2d 908, 910 (Ky. 1971); Sharp v. Sharp, 491 S.W.2d 639, 644-45 (Ky. 1973).
In general, equal protection review of workers' compensation statutes generally necessitates a "rational basis" assessment. See Vision Mining, 364 S.W.3d at 466.
b. Constitutional inapplicability
Howell's final constitutional argument, as set forth in her brief, is as follows:
The law in Kentucky has always been that the law in effect on the date of the work injury controls the outcome of the claim. See Maggard v. International Harvester, 50[8] S.W.2d 777 (Ky. App. 1974). The Petitioner was injured in 1993 and the law that was in effect on that day was locked in at the moment of her injury. The legislature has no authority to create new rules that govern this claim. The required use of the ODG Guidelines in this case takes away the Petitioner's right to receive treatment that she had been receiving for
thirty (30) years that provided relief from the effects of the work injury.Brief at 7.
When addressing Howell's argument set forth above, the Board and Floyd County both interpreted it to mean Howell was claiming the workers' compensation award she received in 1995 for her 1993 work injury provided her either: (1) a vested, due process right to certain treatment (i.e., hydrocodone or other opioids); or (2) a vested, due process right to expect that the laws generally applicable to medical fee disputes would not change. To be sure, Howell's award did no such thing. Due process does not apply to mere expectant rights. See, e.g., Cates v. Kroger, 627 S.W.3d 864, 873 (Ky. 2021); see also BLACK'S LAW DICTIONARY 1323 (7th ed. 1999) (defining an expectant right as "a right that depends on the continued existence of present conditions until some future event occurs; a contingent right"). In that vein, a claimant's assumption that they will always be entitled to a certain type of treatment or medication is an example of an expectant right. Due to advancements in the understanding of medicine, and the fact that many prescription drugs are both approved and disapproved for the public by the United States Food and Drug Association at different times, no person can possibly have a reasonable expectation that any particular drug previously deemed compensable will always be deemed reasonable and necessary, or even remain available. Likewise, Howell could have no vested right merely "founded upon an anticipated continuance of existing general laws." Jarvis v. Nat'l City, 410 S.W.3d 148, 156 (Ky. 2013) (citation omitted).
But that was not Howell's argument, at least not entirely. Considering there are no contentions that Howell's work-related condition or her asserted need for hydrocodone have changed, it is questionable whether the purpose of the medical fee dispute initiated by Floyd County was to determine whether Howell needed to continue her prescription. Rather, in a very real sense, it appears Floyd County's purpose was to obtain an order stating that the new ODG guidelines applied to Howell and that no further prescriptions for hydrocodone would thus be authorized in light of presumption imposed by ODG's "NR" or "Not Recommended" designation of hydrocodone.
With that in mind, the focus of Howell's argument is that the "presumption" created by 803 KAR 25:260 and:270, if applied to her, effectively takes away or impairs vested rights she acquired under the law at the time of her award, or creates a new obligation, imposes a new duty, or attaches a new disability with respect to transactions or considerations already past; e.g., that it is an improper "retrospective law." See Peabody Coal Co. v. Gossett, 819 S.W.2d 33, 36 (Ky. 1991).
It has long been held that "[w]here a suit has been instituted under a statute giving a cause of action and a right to maintain such action, and once the action has been prosecuted to final judgment, and the rights of the parties fixed, such rights then become vested in the judgment, and thereafter a legislature can pass no law which impairs the validity of the vested right thus obtained." Cates, 627 S.W.3d at 873 n.32 (quoting City of Paris v. Kentucky Utils. Co., 280 Ky. 492, 133 S.W.2d. 559, 561 (1939)). With that said, Howell's argument concerns the level - e.g., the amount - of benefits she was entitled to receive by virtue of her award. Howell's right to a certain level or amount of income and medical benefits vested when she received a final decision of her workers' compensation claim in 1995. See Dowell v. Matthews Contracting, 627 S.W.3d 890, 897 (Ky. 2021). And, in instances where a subsequent statutory amendment affects the level or amount of a worker's continuous award of benefits for an occupational disability, "the Court has consistently determined that the amendment was substantive in nature and that the law on the date of injury or last injurious exposure controls." Spurlin v. Adkins, 940 S.W.2d 900, 902 (Ky. 1997) (discussing a claimant's continuous award of income benefits).
Essentially, Howell's argument is that the adoption of the ODG formulary, and its resulting imposition of a mandatory presumption of noncompensability regarding her prescription for hydrocodone that was previously deemed reasonable and necessary for the treatment of her work injury, diminished her award. We agree. Indeed, that much is borne out by the Board's interpretation of 803 KAR 25:260 and:270 set forth above. When Howell was awarded continuing medical benefits in 1995, she was entitled from that point forward to have the reasonableness and necessity of any prospective work-injury-related medical treatment assessed from the standpoint of the law as it existed; and at that time, the operative statutes that granted Howell her right of continuing medical benefits provided, as the Board aptly pointed out in its opinion set forth above, that "[t]he burden in a medical fee dispute is upon the employer to show that the expenses were unreasonable, unnecessary, and unrelated to the work injury." (Emphasis added) (quoting Conifer Health v. Frieda Singleton, No. 2020-SC-0609-WC, 2021 WL 4487772, at *6 (Ky. Sep. 30, 2021) (Designated Not To Be Published)).
As the Board also aptly pointed out, the Commissioner's promulgation of 803 KAR 25:260 and:270 effectively altered that burden of proof by creating a new, mandatory presumption of non-compensability regarding certain medical treatments and prescriptions - a presumption that is not based upon any evidence of record, but instead solely upon whatever the ODG designates to be "NR." Prior to the regulatory adoption of the ODG, there was no limit imposed upon Howell's doctor's exercise of medical judgment as to which prescriptions were needed by Howell, except those that were medically "reasonable and necessary" - an element Howell's employer had the initial burden to disprove. Now, because the ODG undisputedly does not recommend any form of pain medication for Howell's long-term chronic back pain, the new "presumption" imposed by the regulatory adoption of the ODG formulary is the new initial controlling consideration; and it foists the initial evidentiary burden (i.e., of proving the reasonableness and necessity of her hydrocodone prescription) onto Howell.
Altering a burden of proof is not a remedial change; it is a substantive change. See Commonwealth, Department of Agriculture v. Vinson, 30 S.W.3d 162, 169 (Ky. 2000) (explaining a statute that "changed the causation and weight of evidence components as to what an employee is required to prove successfully to support a claim" and "also required a new burden of proof from the employer in order to successfully defend a claim under the law" was a substantive rather than remedial change). And, when the General Assembly enacted KRS 342.035 - the very statute that authorized the Commissioner to promulgate 803 KAR 25:260 and:270 - the General Assembly explained KRS 342.035 was designed and intended to be:
[R]emedial and shall apply to all claims irrespective of the date of injury or last exposure, provided that, as applied to any fully and finally adjudicated claim, the amount of indemnity ordered or awarded shall not be reduced and the duration of medical benefits shall not be limited in any way.See Kentucky House Bill 2 § 20(2) (2018 Ky. Acts ch. 40) (emphasis added).
Applying the mandatory regulatory presumption set forth above to Howell's award would reduce "the amount of indemnity ordered or awarded" to her; it would therefore infringe upon her vested right to continued medical treatment; and it would do so in contravention of the General Assembly's stated intent behind enacting KRS 342.035. Accordingly, the ALJ unconstitutionally applied that presumption to Howell.
2. Harmless error
Considering what is set forth above, if the only "evidence" Floyd County presented or the ALJ relied upon regarding the continued compensability of Howell's hydrocodone prescription boiled down to nothing more than the "Not Recommended" or "NR" designation of the ODG, substantial error would have occurred. But, irrespective of the presumption imposed by that designation, the ALJ ultimately weighed substantial evidence presented by both sides of this medical fee dispute and determined, on balance, that Howell's evidence came up short.
As she did below, Howell contends the evidence she adduced before the ALJ sufficiently demonstrated that she required hydrocodone for her work injury, and that the ALJ therefore should have required Floyd County to continue paying for her prescription. To that end, Howell states she has been using opioids since 1993; she represents that without opioids, she needs help with activities of daily life; and she notes that her treating physician, Dr. Garrett, indicated she required and would substantially benefit from "lifetime use" of opioids. Howell further represents that "any suggestion by Dr. Fadel or Dr. Kakel [i.e., her employer's medical experts] that the pain medication used by Judy Howell was not helpful or beneficial is clearly at odds and inconsistent with years of treatment records, Dr. Garrett's Treatment Plan and Judy Howell's testimony." The thrust of Howell's argument is that she is entitled to a compensable prescription for opioids because opioids grant her a measure of pain relief.
However, ODG guidelines aside, pain relief is not the only evidentiary criteria for determining whether opioids are reasonable and necessary in this context; nor was Howell's evidence compelling, considering what detracted from it. As the ALJ noted below, Drs. Fadul and Kakel agreed with the ODG guideline that hydrocodone should not be used for long-term, chronic back pain; Dr. Kakel noted the numerous side effects of long-term opioid usage, including decreased benefit, increased tolerance, sleep disorders, dependency, and death; and Dr. Garrett failed to address or consider alternative pain control methods. We accordingly find no error in the ALJ's decision to find Howell's hydrocodone prescription non-compensable. The ALJ properly exercised his fact-finding authority.
IV. Conclusion In light of the foregoing, we AFFIRM.
ALL CONCUR.