Opinion
NO. 2012-CA-000715-WC NO. 2012-CA-000822-WC
03-08-2013
TERRY LOGSDON APPELLANT v. LEAR CORPORATION; HON. DOUGLAS W. GOTT, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES AND LEAR CORPORATION CROSS-APPELLANT v. TERRY LOGSDON, HON. DOUGLAS W. GOTT, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD CROSS-APPELLEES
BRIEFS FOR APPELLANT/CROSS- APPELLEE TERRY LOGSDON: Edward A. Mayer Louisville, Kentucky BRIEF FOR APPELLEE/CROSS- APPELLANT LEAR CORPORATION: C. Patrick Fulton Louisville, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-10-83885
CROSS-PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-10-83885
OPINION
AFFIRMING
BEFORE: COMBS, KELLER, AND LAMBERT, JUDGES. KELLER, JUDGE: Terry Logsdon (Logsdon) seeks review of the Workers' Compensation Board's (the Board) affirmation of the Administrative Law Judge's (the ALJ) finding that ongoing use of narcotic pain medication is not reasonable and necessary treatment. Lear Corporation (Lear) seeks review of the Board's affirmation of the ALJ's finding that epidural steroid injections are reasonable and necessary and related to Logsdon's work injury. Having reviewed the record, we affirm.
FACTS
In June 2005, Logsdon filed an application for resolution of injury claim alleging that he suffered a low back injury while working at Lear on August 12, 2002. The parties settled Logsdon's claim on October 20, 2005, based on a 5% impairment rating with half of the impairment being attributed to the work injury and half to a pre-existing active condition. Logsdon did not waive his entitlement to medical expense benefits as part of that settlement.
On July 26, 2007, Logsdon filed a motion to reopen and medical fee dispute alleging that Lear had refused to pay for epidural steroid and trigger point injections and for narcotic pain medication recommended/prescribed by Drs. Chou and Collis. Lear responded to Logsdon's motion arguing that the treatment Logsdon sought was not reasonable, necessary, or related to the August 2002 work injury. Following a hearing, a different ALJ from the one herein determined that trigger point injections were not reasonable or necessary. However, that ALJ found that the epidural steroid injections and narcotic pain medication were reasonable, necessary and related to the work injury. Neither party sought review of that opinion.
On June 11, 2010, Logsdon filed a claim alleging that he suffered a left rotator cuff injury on February 26, 2010. On February 4, 2011, while Logsdon's shoulder injury claim was pending, Lear filed a motion to reopen and medical fee dispute related to Logsdon's 2002 back injury claim. In the medical fee dispute, Lear argued that Logsdon's ongoing epidural steroid injections and narcotic medication use were not reasonable, necessary, or related to the 2002 work injury. An ALJ granted the motion to reopen, and the shoulder injury claim and medical fee dispute were consolidated. The parties settled Logsdon's shoulder injury claim on April 7, 2011, but they were unable to settle the medical fee dispute.
Following a final hearing, the ALJ issued an opinion and order finding that the epidural steroid injections were reasonable and necessary, but that continued use of narcotic pain medication was not. Both parties filed petitions for reconsideration and the ALJ granted Lear's petition to the extent that he corrected several erroneous statements in the opinion and order. However, the ALJ did not change the substance of his opinion and order. Logsdon then filed an appeal to the Board and Lear filed a cross-appeal. The Board affirmed the ALJ. Logsdon now petitions and Lear cross-petitions for review of the Board's opinion.
The record contains the following pertinent evidence from the initial litigation, the first medical fee dispute, and this, the second medical fee dispute.
1. Dr. Wood
Lear had Logsdon evaluated by Dr. Wood on June 3, 2004, and again on October 15, 2007. Following his 2004 examination of Logsdon and review of Logsdon's medical records, Dr. Wood concluded that Logsdon "had a pre-existing active condition in his lower back, lumbar spondylosis without documented radicular complaints, which was aggravated to the extent that it began producing complaints of bilateral lower extremity radiation, primarily involving the S1 dermatome bilaterally." Dr. Wood recommended continued medication and exercises, limited Logsdon to medium-capacity work, and assigned a 5% impairment rating. He attributed half of that rating to a pre-existing active condition. Finally, Dr. Wood stated that, "to a reasonable degree of medical certainty, there is a causal relationship between [Logsdon's] current complaints and the reported injury."
Following his 2007 examination of Logsdon, Dr. Wood stated that his objective findings were consistent with Logsdon's subjective complaints. However, Dr. Wood stated that Logsdon's complaints were not the result of the work injury but were "caused by his pre-existing actively symptomatic lumbar spondylosis and spinal stenosis, as well as by the natural aging process." Furthermore, Dr. Wood stated that he found no objective evidence in Logsdon's medical records or examination that the work injury "substantially contributed to [Logsdon's] . . . symptoms." Dr. Wood explained that he changed his opinion regarding causation based on "further review of the records . . . of Dr. Becherer," a physician who had treated Logsdon before the injury. However, Dr. Wood stated that epidural injections and the medication prescribed by Dr. Chou were reasonable treatment for Logsdon's condition.
2. Dr. Goldman
Dr. Goldman apparently performed at least three records' reviews as part of utilization reviews conducted by Lear; however, the only reports from Dr. Goldman in the record are from February 15, 2007, and January 6, 2011. In his 2007 report, Dr. Goldman noted that, in 2004, he had stated that epidural injections might be reasonable treatment, although he did not believe Logsdon's condition was related to the 2002 injury. In his 2007 report, Dr. Goldman reiterated his belief that Logsdon's condition, spinal stenosis secondary to degenerative changes in the lumbar spine, was not related to the 2002 injury. However, like Dr. Wood, Dr. Goldman stated that epidural injections and Logsdon's medication regimen were reasonable.
In his 2011 report, Dr. Goldman noted that Logsdon had received epidural injections in the past with varying degrees of efficacy. It appears from his 2011 report, that Dr. Goldman had recommended denial of epidural steroid injections as part of a 2009 utilization review because the injections only resulted in 20% to 25% pain relief. In his 2011 report, Dr. Goldman noted that Logsdon had received an epidural injection three weeks earlier and obtained 60% pain relief. Dr. Goldman recommended denial of any additional epidural injections because the treatment guidelines state that epidural injections are not indicated unless they provide "at least 50% to 75% pain relief for at least 6-8 weeks." Therefore, additional injections were "not yet indicated."
3. Dr. Becherer
Dr. Becherer, who examined Logsdon on August 21, 2002, for complaints of back and leg pain, noted that Logsdon's symptoms began nearly a year earlier. Although he thought Logsdon's complaints of leg symptoms were "reminiscent of restless leg syndrome," Dr. Becherer referred Logsdon for an MRI. That MRI showed no significant pathology and Dr. Becherer released Logsdon from his care.
4. Dr. Collis
Dr. Collis's records reveal that he treated Logsdon for complaints of back and leg pain from September 2003 through December 2010. Dr. Collis's treatment appears to have consisted of the administration of occasional epidural steroid injections. He indicated this treatment provided some relief, but it did not eliminate Logsdon's pain.
5. Dr. Chou
Dr. Chou's records indicate Logsdon consistently complained of back and lower extremity pain, and Dr. Chou prescribed pain medication for Logsdon's symptoms.
6. Dr. Jacob
Dr. Jacob performed an independent medical evaluation of Logsdon on April 20, 2011. Logsdon complained to Dr. Jacob of low back pain dating to 2000. However, Logsdon stated that, following his 2002 work injury, his pain increased. Dr. Jacob noted that, since 2002, Logsdon had received eleven to twelve epidural injections. According to Logsdon, his pain improved up to 50% for five to six months when he received a series of three injections but did not improve as significantly following a single injection.
Following his examination and review of Logsdon's medical records, Dr. Jacob made a diagnosis of degenerative disc disease that pre-existed and is not related to the work injury. According to Dr. Jacob, Logsdon's symptoms are "typical and characteristic of patients who have degenerative lumbar arthritis and lumbar degenerative disk disease." Finally, Dr. Jacob stated that epidural injections and narcotic medication are not medically necessary or reasonable treatment.
7. Dr. Moore
Dr. Moore's office notes, which were filed by Lear, are handwritten and essentially illegible; therefore, we have not attempted to summarize them.
8. Logsdon
Logsdon testified by deposition and at the 2008 and 2011 hearings. In pertinent part, Logsdon testified that he had experienced low back pain with radiation into his legs since his 2002 work injury. He had not had any surgery for his back condition but had undergone several epidural injections. According to Logsdon, the epidural injections, if delivered in a series of three, provided significant and fairly long-term relief. Following the injections, he was able to reduce the amount of pain medication he took; however, over time, the effects of the injections decreased. Logsdon would then slowly increase his pain medication, and ultimately get additional injections. While he does not like getting the injections, Logsdon believes that is preferable to taking narcotic pain medication. Finally, Logsdon believes that the injections and pain medication made it possible for him to continue working at Lear until it shut down in December 2010.
STANDARD OF REVIEW
The ALJ has the sole discretion to determine the quality, character, and substance of the evidence and 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. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985); Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977). If the party with the burden of proof was successful before the ALJ, the question on review is whether the ALJ's decision is supported by substantial evidence. If that party was unsuccessful, the question is whether the evidence compelled a finding in his favor. Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky. App. 1984). With these standards in mind, we address the issues raised in the petition and cross-petition for review.
ANALYSIS
As the Board noted, in a post-award/settlement medical fee dispute, the claimant bears the burden of proving that treatment is related to the work injury. See Addington Resources, Inc. v. Perkins, 947 S.W.2d 421, 423 (Ky. App. 1997). However, the employer bears the burden of proving that treatment is not reasonable and/or necessary. National Pizza Co. v. Curry, 802 S.W.2d 949, 951 (Ky. App. 1991). Applying the parties' relative burdens, we first address Logsdon's argument on petition for review that the ALJ erred in finding his use of narcotic pain medication is not reasonable or necessary. Because Logsdon did not prevail on this issue, he must demonstrate that the evidence compelled a contrary finding.
In their 2007 reports both Dr. Goldman and Dr. Wood indicated that Logsdon's use of narcotic pain medication was reasonable and necessary for treatment of his condition. In his 2011 report, Dr. Jacob indicated that treatment was not reasonable or necessary. Dr. Jacob's opinion is evidence of substance and the ALJ was free to believe and rely on that opinion in making his finding. Although there is contradictory evidence in the record and we might have found differently, those facts do not compel a different result. See Special Fund v. Francis, 708 S.W.2d 641, 644 (Ky. 1986). Therefore, we cannot disturb the ALJ's finding that Logsdon's narcotic medication use is unreasonable and/or unnecessary treatment.
We next address the two arguments made by Lear in its cross-petition for review: (1) that neither the ALJ nor the Board addressed work relatedness; and (2) that Logsdon failed to meet his burden of proof because there is no medical evidence in the record relating his condition and medical treatment to the work injury.
Lear's first argument is factually incorrect. The ALJ stated in his opinion that "Logsdon continues to sustain his burden of work relatedness from the records of his treating physicians . . . ." The Board found that "the ALJ's decision finding epidural steroids to be compensable is supported by substantial evidence" and cited to Logsdon's testimony and to records from Dr. Collis. Although the Board did not specifically use the term "work related," a finding of compensability entails a finding of work relatedness; therefore, the Board implicitly, if not explicitly, addressed work relatedness when it affirmed the ALJ.
In support of its second argument, that Logsdon failed to meet his burden of proof, Lear cites to Mengel v. Hawaiian-Tropic Northwest and Central Distributors, Inc., 618 S.W.2d 184 (Ky. App. 1981). In Mengel, this Court held that "when the question is one properly within the province of medical experts" the finder of fact cannot disregard the medical evidence. Id. at 187. Even if Mengel controls, which we are not certain is the case, there is medical evidence in the record that Logsdon's condition is work related. In his 2004 report, Dr. Wood related Logsdon's condition, at least in part, to the work injury. We recognize that Dr. Wood changed that opinion in 2007; however, nothing in the record makes Dr. Wood's 2007 opinion more compelling than his 2004 opinion. Furthermore, Logsdon's consistent complaints of back and leg pain - as reflected in Dr. Wood's reports, Dr. Jacob's report and testimony, Logsdon's testimony, and the records of Drs. Collis and Chou - and the ALJ's 2008 finding of work relatedness are sufficient evidence of substance to support an inference of current work relatedness. Nothing in the record compels a contrary finding; therefore, we affirm the ALJ's finding that epidural steroid injections are related to Logsdon's injury and compensable.
Finally, we sympathize with Logsdon's apparent frustration that this ALJ's opinion differs from the 2008 opinion with regard to the use of narcotic pain medication. However, as the ALJ herein noted, "a prior finding that medical benefits are reasonable and necessary does not mean that they remain so forever." The fact of the matter is that medical treatment can change over time and what is reasonable and necessary today may not be tomorrow. Therefore, absent some legislative or regulatory solution, nothing prevents an employer from repeatedly raising the issue of reasonableness and necessity. On the other hand, nothing prevents an ALJ from sanctioning an employer that abuses the privilege of reopening to contest the reasonableness and necessity of medical treatment.
CONCLUSION
For the foregoing reasons, we affirm.
ALL CONCUR. BRIEFS FOR APPELLANT/CROSS-
APPELLEE TERRY LOGSDON:
Edward A. Mayer
Louisville, Kentucky
BRIEF FOR APPELLEE/CROSS-
APPELLANT LEAR
CORPORATION:
C. Patrick Fulton
Louisville, Kentucky