Opinion
NO. 2012-CA-001101-WC
03-01-2013
WESTERN KENTUCKY DOOR APPELLANT v. RONNIE CROSS, NEXT FRIEND OF BENJAMIN CROSS; HON. JOSEPH JUSTICE, ADMINISTRATIVE LAW JUDGE; WORKERS' COMPENSATION BOARD; BROOKE ARMY MEDICAL CENTER; CENTRE FOR NEURO SKILLS, INC.; UROMED, INC.; BAYLOR MEDICAL CENTER AT IRVING; TEXAS HEALTH HARRIS METHODIST HOSPITAL FORT WORTH; FORT WORTH BRAIN AND SPINE INSTITUTE; MICHAEL STEWART, M.D.; IRVING RADIOLOGICAL ASSOCIATES; OMNICARE OF SAN ANTONIO; and AMERITECH AMBULANCE APPELLEES
R. Christion Hutson, Esq. Paducah, Kentucky BRIEF FOR APPELLEE, RONNIE CROSS AS NEXT FRIEND OF BENJAMIN RUSSELL CROSS: Jeff V. Layson III Bowling Green, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-05-75634
OPINION
AFFIRMING IN PART AND REVERSING IN PART
BEFORE: MAZE, MOORE, AND TAYLOR, JUDGES. MOORE, JUDGE: Western Kentucky Door contracted to renovate part of a Wal-Mart store in San Antonio, Texas. Around 10:15 a.m. on September 18, 2008, one of Western's employees, Benjamin Cross, was disassembling part of the steel roof on the Wal-Mart store when he fell approximately fifteen feet and landed on a concrete floor. Ben sustained extensive injuries as a result of his fall, including injuries to his brain. A claim for workers' compensation benefits was filed thereafter on Ben's behalf by Ronnie Cross, his father and next friend.
Western conceded that Ben sustained work-related injuries in the course and scope of his employment due to his fall. Nevertheless, Western denied liability for paying workers' compensation benefits to Ben because, as it asserted, Ben was voluntarily intoxicated at the time that he sustained those injuries, and his voluntary intoxication was the primary proximate cause of said injuries. After reviewing the evidence of record, however, the Administrative Law Judge (ALJ) rejected Western's voluntary intoxication argument and held Western liable for providing Ben with workers' compensation benefits. The Board of Workers' Claims affirmed the ALJ's decision in a subsequent appeal, and Western now appeals to this Court.
Western also asserted that Ben's alleged intentional failure to use any safety appliance at the time of his injuries warranted a 15% reduction of benefits, per KRS 342.165(1). This additional defense was not a contested issue on appeal before the Board and is not at issue in this appeal.
There are two issues presented in this appeal. First, Western argues that when the ALJ rejected its defense of Ben's alleged voluntary intoxication, the ALJ erroneously assessed the evidence of record. Second, Western argues that the ALJ and Board erred in holding a number of Ben's medical expenses compensable. For the reasons discussed below, we affirm the ALJ's and Board's decisions on the first issue, but reverse their decisions, in part, on the second.
I. VOLUNTARY INTOXICATION
We begin our own review by stating, as a general matter, that the ALJ is the finder of fact in workers' compensation matters. Ira A. Watson Dept. Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000). The ALJ has "the sole discretion to determine the quality, character, and substance of the evidence." Abel Verdon Const. v. Riveria, 348 S.W.3d 749, 753 (Ky. 2011). And, the ALJ is broadly permitted to interpret and draw reasonable inferences from the evidence; to choose which evidence upon which to rely; and to reject any testimony. Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky.1977). Kentucky Revised Statutes (KRS) 342.285(2) provides that the Board shall not reweigh the evidence and substitute its judgment for that of the ALJ with regard to a question of fact; likewise, the standard of review with regard to a judicial appeal of an administrative decision is limited to determining whether the decision was erroneous as a matter of law. American Beauty Homes v. Louisville & Jefferson County Planning & Zoning Commission, 379 S.W.2d 450, 457 (Ky. 1964).
The burden of proof and risk of non-persuasion rests with the party holding the affirmative of any issue before the ALJ. Thus, where the ALJ determines that a worker has satisfied his burden of proof with regard to a question of fact, the issue on appeal is whether substantial evidence supported the determination. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986). "Substantial evidence" has been defined as "evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men." Smyzer v. B.F. Goodrich Chemical Co., 474 S.W.2d 367, 369 (Ky. 1971). Conversely, where the fact-finder's decision is to deny relief to the party with the burden of proof and persuasion, it is not enough for that party to note evidence which would have supported a conclusion contrary to the ALJ's decision; such evidence is not an adequate basis for reversal. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974). Rather, the issue on appeal is whether the evidence in that party's favor is so compelling that, as a matter of law, no reasonable person could have failed to have been persuaded by it. Carnes v. Tremco Mfg. Co., 30 S.W.3d 172, 176 (Ky. 2000); see also Francis, 708 S.W.2d at 643.
"Voluntary intoxication" is a "special defense," e.g., an affirmative defense, pursuant to 803 Kentucky Administrative Regulations (KAR) 25:010 §§ 1(9) and 5(2)(d)(4)(e). As the party asserting it, the burden of proving it and risk of non-persuasion therefore rested with Western. KRS 342.610(3) relieves the employer from liability if a worker's injury is "proximately caused primarily by voluntary intoxication as defined in KRS 501.010[.]" Pursuant to KRS 501.010(2), "'Intoxication' means a disturbance of mental or physical capacities resulting from the introduction of substances into the body." KRS 501.010(4) defines "voluntary intoxication" as:
[I]ntoxication caused by substances which the defendant knowingly introduces into his body, the tendency of which to cause intoxication he knows or ought to know, unless he introduces them pursuant to medical advice or under such duress as would afford a defense to a charge of crime.
To sustain its burden of proving that Ben was voluntarily intoxicated at the time he sustained his injuries, Western produced a deposition from Roy Stewart, who was Ben's supervisor; depositions from J.C. Boren and David "Buck" Cook, two of Ben's co-workers who were present when Ben fell; a laboratory test report from Brooke Army Medical Center regarding a sample of Ben's urine that was collected at 11:01 a.m. on September 18, 2008; and a report from Saeed Jortani, Ph.D., which considered the previously mentioned depositions and sample and opined that voluntary intoxication resulting from marijuana was the primary and proximate cause of Ben's fall. As a whole and in light of another expert opinion from Dr. George R. Nichols II (Ben's rebuttal expert), the ALJ found the evidence relating to Ben's alleged voluntary intoxication to be speculative and unpersuasive. We will summarize this evidence.
1. Roy Stewart
Roy Stewart was Ben's supervisor and in that role, according to Boren, Stewart was responsible for ensuring that Ben performed work in a safe manner. Stewart testified that he did not witness Ben's work on the disassembly of the steel roof or Ben's fall because, at the time, he was elsewhere reviewing blueprints in a trailer. Stewart testified that he did not provide Ben with any safety instruction or procedure for disassembling the steel roof, and that he did not know whether Ben had received any such instruction from Western, and that he had never worked with Ben on any prior job. As an aside, Cook testified that he could remember no instance where Stewart told Ben to stop doing a job a certain way or to change the way he was doing a job.
Stewart testified that Ben usually acted stubborn and "hard-headed," and that he had to repeat instructions to Ben on occasion. But, Stewart further testified that Ben would perform his work "all right," and that on the morning of the incident, he saw nothing unusual about Ben and no indication that Ben was intoxicated or otherwise under the influence of drugs. He testified that he had seen Ben smoke marijuana on one or two prior occasions. But, he did not know whether Ben had smoked a whole marijuana joint; furthermore, Stewart testified that he did not see Ben smoke marijuana during the week of the accident, and that he never saw Ben use it while working.
The San Antonio job began on or about September 8, 2008. Stewart testified that he only witnessed Ben smoking marijuana on one or two occasions during the first week of this job.
As to what caused Ben's injuries, Stewart testified, "As far as how it happened, no one has a clue, to my knowledge," and "I don't know whether he slipped, whether the metal slipped, if he blacked out or what happened, I have no clue."
2. J.C. Boren
J.C. Boren was Ben's co-worker. He had never worked with Ben prior to the San Antonio job. He described Ben as follows:
It was like he could be doing something, he's a young boy, and I guess he was kind of bull headed and wanted to do things his way or whatever, you know. So he'd be doing something, then a few minutes later he'd just walk off, and you'd kind of like have to reprogram him again and tell him what to be doing. I mean, he'd do a good job, but it was like he wouldn't pay attention, his attention span wasn't good.Boren further testified that Ben "was slow, but he'd get it done. It might take him a little longer, and the boy was careful about what he was doing."
Boren was not responsible for providing Ben with safety instruction; to underscore this point, after warning Ben two or three times to stay on the scissors lift while disassembling the steel roof, Boren testified that he told Ben, "Man, I done told you to get in the lift, but you ain't going to listen no way, Ben, do it your own damn way." Boren also testified that after he warned Ben, Ben told him "This is the way I've done it, this is the way I was told to do it."
As to why Boren told Ben to stay in the lift, along with the specifics of Ben's subsequent fall, Boren testified:
Well, when you put a piece [of steel roofing] down, you got to keep it lined up, and all your metal is not straight, or your structure is not straight. So you got to push it, put pressure on it and then screw it down. And the more
you do that, the more pressure you got on it when you get to the end, you know. And when you are taking it off, that's when you got that pressure coming back so when you take them screws out, it's going to kick. And I told [Ben] that, but like I said, he wouldn't listen. So I was backing the lift up to take down a down spout that had two screws in it, and I was backing it up like this, and the next thing I know, I heard a boom, two pieces of metal fell. And I turned around and was going to holler at Ben and tell him that I said not to take out no more screws and to get off, and when I looked up, he wasn't up there, he was laying down on the ground.
Boren noted that nothing about Ben seemed different on the morning of the accident; in his deposition, he testified that Ben was acting "just as hard headed as ever, and I mean that in a good way, you know." He testified that he had never witnessed Ben using drugs and, the night before the accident, did not see Ben drink any alcoholic beverages. He also testified that prior to the accident he had never witnessed Ben acting in an intoxicated state.
3. David Cook
David Cook was Ben's co-worker, but, like Boren, he was not responsible for providing Ben with safety instruction. Cook testified that he had previously worked with Ben on another Wal-Mart project in McAllen, Texas, and that part of the McAllen job also involved disassembling a metal roof, but nothing in the record demonstrates the extent of Ben's involvement in disassembling that roof, or whether Ben disassembled the Wal-Mart roof in McAllen in the same manner as he did in San Antonio.
In support of its contention that Ben was voluntarily intoxicated, Western emphasizes the fact that Cook testified:
Well, [Ben] kind of acted a little strange anyway. I had noticed a few times, like in McAllen, we'd be working, and we'd be like over in another part of the garden center or something working and I'd be over in the other side doing something, and I'd turn around and look and he'd just be standing there doing something. Then I'd turn back around to do something else, look around and he'd be gone. He'd just take off inside Wal-Mart or something just roaming around, doing whatever, like he was in a completely different world.(Emphasis added.) To the extent that this statement could be evidence of voluntary intoxication, however, it is not evidence that Ben was voluntarily intoxicated on the morning of September 18, 2008, at the San Antonio job. The record does not reflect the date of the prior McAllen job.
Cook testified that on the morning of the accident, he had given Ben a warning, similar to Boren's two or three warnings, against leaving the lift to disassemble the roof, and that Ben responded by looking at him "funny." Cook testified that the period of time that elapsed between the warnings that he and Boren gave Ben, and Ben's eventual fall, was "five or ten minutes at the most." Like Stewart and Boren, Cook did not witness Ben falling from the roof.
Cook further testified that Ben was performing his work that morning "alright, but about like always, he was kind of stubborn and he wanted to do everything his way, and he wouldn't pay attention to nobody." In that vein, Cook described a prior incident where he and Boren had attempted to instruct Ben on how to do a task, and Ben had chosen to do it his way instead:
The night before, we was up there hanging shade cloth, and me and [Boren] told him to use bungee balls to put the shade cloth up there so he could move it around and get it even before he laced it, and anyway, he had a fit then and didn't want to do it with the bungee ball. He wanted to do it his way.
When asked if he had ever seen Ben smoke marijuana, Cook testified that he had seen Ben smoke part of a marijuana cigarette while they were driving down to Texas on September 16, 2008, and that he "got on to [Ben] about it, told him [he] didn't like that mess being in the truck." Cook also testified that he smelled marijuana on Ben on one or two other occasions later that day, but that nothing indicated Ben had smoked marijuana or was otherwise intoxicated on September 17 or 18, 2008. Cook added that "even before the accident happened, [Ben] didn't say nothing out of the ordinary or nothing like that."
4. Laboratory test report from Brooke Army Medical Center
At 11:01 a.m., approximately 45 minutes after Ben's accident, Brooke Army Medical Center took a sample of Ben's urine and performed an analysis. The report states that the sample tested "positive" for cannabinoids (THC), and that "the threshold concentrations used to separate a negative result from a presumptive positive result" for cannabinoids was "20 ng/mL." In relevant part, the report further states that "RESULTS ARE INTENDED FOR MEDICAL SCREEN ONLY. NOT CONFIRMED WITH SECONDARY METHOD," and that "[c]onfirmation testing is not performed on presumptive positive cannabinoid results. . . These results are intended for medical treatment only."
5. Opinion of Dr. Saeed A. Jortani
Dr. Jortani is a clinical chemist and forensic toxicologist. He reviewed the depositions of Ben's co-workers and the laboratory test report from Brooke Army Medical Center. He also reviewed a copy of Ben's August 1, 2008 job application with Western, in which Ben admitted to having previously "pled guilty or no contest" to "possession of paraphernalia and marijuana, 3 years ago[.]" Based upon these things, Dr. Jortani opined that Ben had been "an active user of marijuana prior to the time and date of this accident." Dr. Jortani also cited several studies relating to the effects of sustained marijuana use upon human cognitive function, and noted that some of these studies indicated that marijuana could encourage risk-taking behavior for a period of up to 28 days after its use. Dr. Jortani concluded that Ben's use of marijuana was voluntary and the primary proximate cause of his injuries.
6. Rebuttal opinion of Dr. George R. Nichols, II, M.D.
Ultimately, the ALJ chose to rely upon the opinion of Dr. Nichols, which Ben introduced in rebuttal. Dr. Nichols is a licensed physician certified in anatomic, clinical, and forensic pathology. After reviewing the same evidence as Dr. Jortani, Nichols stated in relevant part:
A urine sample, obtained at 11:00 was tested as a urine drug screen (UDS), a search for the metabolites or byproducts of drugs previously ingested, inhaled or injected. The UDS does not offer any evidence of current brain effect of any family of drug which may be detected. And, the laboratory correctly states in writing that the "results are intended for medical screening only" and that the UDS positive result is "not confirmed with secondary methodology." Both statements are scientifically correct. The screen (UDS) is not constructed as a definitive test. For any validity to be present another test which is more specific must be used to confirm the screen result. I have seen no report of any confirmatory testing.
This specific UDS was reported to be negative for amphetamines, methamphetamines, barbiturates, benzodiazepines, cocaine, opiates, PCP and tricyclic anti-depressants. The UDS was reported to be positive for THC with a cutoff positive level of 20 ng/ml, a level reported to occur in urine from passive inhalation of marijuana alone (think a Rolling Stones concert).
With confidence I can conclude that Benjamin Cross probably consumed, inhaled, used marijuana in the past and that the date(s) of usage is widely variable from hours for up to thirty (30) days. Regardless, this test result was not confirmed so its validity is unproven and the test was carried out on the incorrect biologic fluid (blood/serum) to determine scientifically brain effect by drug, if any.
Another expert in this matter has interpreted the above test, sworn statements of witnesses and an employment application as indicators that Benjamin Cross was an "active user of marijuana." This expert has chosen to site [sic] studies concerning the behavioral, intellectual and performance effect of marijuana in chronic users which he does not define. In fairness to the expert he stated that the UDS may not be used "to extrapolate the time or dose ingested."
It is my opinion that there is no proof of impairment/intoxication by any drug in Benjamin Cross at the time of his fall. Like the other expert I could speculate that Benjamin Cross fell because of attention deficit hyperactivity disorder (ADHD). His exhibited behavior "could" represent that disorder also. My speculation also cannot be proven by the available medical records.
Based upon the above, we might speculate that Ben fell due to 1) inadequate training and supervision; 2) an underlying attention deficit disorder; 3) intoxication; or 4) his own simple negligence. But, as Dr. Nichols's opinion points out, speculation is not evidence. We therefore affirm the ALJ's decision to reject Western's affirmative defense of Ben's alleged voluntary intoxication. In sum, Ben's co-workers testified that they witnessed nothing unusual about his behavior on the morning of the accident, and nothing indicating he was intoxicated. The laboratory test report from Brooke Medical Center does not indicate whether Ben had enough THC in his system at that time to impair his cognitive processes. Moreover, even if something in the record beyond speculation did support Western's defense of voluntary intoxication, Western has pointed to no evidence of voluntary intoxication so compelling that, as a matter of law, no reasonable person could have failed to have been persuaded by it. Carnes, 30 S.W.3d at 176. At best, the ALJ's decision in this matter simply represents a valid exercise of his authority to determine the quality, character, and substance of the evidence, and to rely upon some testimony while rejecting testimony to the contrary. See Riveria, 348 S.W.3d at 753; Caudill, 560 S.W.2d at 16.
II. MEDICAL FEE DISPUTES
In the context of Workers' Compensation, KRS 342.020 defines the employer's responsibility for paying an injured employee's reasonable and work-related medical expenses; it also defines the employee's and medical provider's responsibilities for timely submitting those expenses to the employer. As explained by the Kentucky Supreme Court in Garno v. Solectron USA, 329 S.W.3d 301, 304-5 (Ky. 2010), KRS 342.020
seeks to ensure that medical services are provided efficiently and economically by requiring injured workers to designate a single treating physician or
physicians' group to supervise medical services; by permitting employers to provide medical services through a managed health care system; and prohibiting fees that exceed medical fee schedules. KRS 342.020 and the accompanying regulations also seek to ensure the prompt billing and payment of compensable medical expenses by imposing certain duties on providers, employers, and injured workers.
KRS 342.020(1) requires a provider to submit a statement for services within 45 days of the date that treatment of a work-related injury is initiated and every 45 days thereafter. It then requires the employer to pay the provider within 30 days of receiving the statement unless the period is tolled by regulation, such as during utilization review.
A final award of medical benefits was not entered in this matter until December 8, 2011, but the ALJ awarded Ben medical benefits pursuant to an interlocutory award on July 15, 2009. In relevant part, the interlocutory award provided:
The ALJ finds that [Ben] sustained work-related injuries on September 18, 2008 for which he requires immediate medical treatment and that [Ben] will suffer irreparable injury, loss or damage if he does not receive such medical treatment. Accordingly, IT IS HEREBY ORDERED that [Ben's] Motion for Interlocutory Relief is hereby GRANTED.
The Defendant/Employer, by and through its workers' compensation insurance carrier, is hereby ordered to pay for [Ben's] medical expenses incurred for the treatment and/or cure and/or relief of the work-related injuries which [Ben] sustained on September 18, 2008 and which is the subject of this claim pursuant to KRS 342.020. The Defendant/Employer shall pay said medical expenses incurred beginning with the date of this Order and continuing until further Order of the Administrative Law Judge.
Western filed several medical fee disputes below. As noted infra, all of the medical expenses that Western disputed were submitted by Ben and his medical providers after the ALJ awarded Ben interlocutory medical benefits, but outside of the 45-day period specified in KRS 342.020(1). Citing that deadline, Western argued that these medical expenses were barred by operation of law. Nevertheless, the ALJ resolved the majority of these medical fee disputes in favor of Ben. Relying entirely upon R.J. Corman R.R. Const. v. Haddix, 864 S.W.2d 915 (Ky. 1993), the ALJ determined that the deadlines discussed throughout KRS 342.020(1) and its accompanying regulations apply only after a final award has been entered and that they do not apply following the entry of an interlocutory award. Western now appeals.
At the onset, we note that the ALJ's reliance upon Haddix in support of his holding (i.e., that the deadlines contained in KRS 342.020(1) apply only to final orders) was misplaced. Haddix merely provides that
[u]ntil an award has been rendered, the employer is under no obligation to pay any compensation, and all issues, including medical benefits, are justiciable. Therefore, we believe that KRS 342.020, which addresses additional compensation for injuries, which must be determined to be work-related per KRS 342.0011(1) to be compensable, applies to medical statements received by an employer after an ALJ has determined that said bills are owed by the employer.Id. at 918.
Haddix concerned KRS 342.020(1)'s 30-day payment rule. The 45-day submission rule in that statute, which is at issue in this case, was enacted effective July 14, 1992, shortly before Haddix. Adopted in 1993, 803 KAR 25:096 was has been amended subsequently, and Section 6 of that regulation authorizes the ALJ to toll the 45-day period upon a showing of "reasonable grounds." The August 9, 2007 version of that regulation controls this claim.
No interlocutory award of medical benefits was ever entered or even at issue in Haddix. Nothing in Haddix states that the deadlines specified in KRS 342.020(1) apply only after a final award has been entered, rather than after an interlocutory award. Indeed, Haddix simply provides that the deadlines specified in KRS 342.020 apply "post-award," without categorizing the "award" in question as either final or interlocutory. Id.
The ALJ's ruling in this matter is not only unsupported by the language of Haddix; it is contradicted by statute, regulation, precedent from the Board of Workers' Claims, and precedent from the Supreme Court of Kentucky. KRS 342.275(2) authorizes an ALJ to "grant . . . any benefits afforded under [KRS 342 et seq.], including interlocutory relief, according to criteria established in administrative regulations promulgated by the commissioner." Pursuant to this statute, the commissioner promulgated 803 KAR 25:010 § 12(b), which authorizes an ALJ to grant a claimant medical benefits by way of an interlocutory order. If an ALJ does grant medical benefits by way of an interlocutory order, 803 KAR 25:010 § 12(b) requires the ALJ to grant "[m]edical benefits pursuant to KRS 342.020" (emphasis added) and, thus, subject to the deadlines imposed by KRS 342.020(1). The 45-day period specified in KRS 342.020(1) is mandatory. Thus, in the words of 803 KAR 25:096 § 6, "If the medical services provider fails to submit a statement for services as required by KRS 342.020(1) [i.e., within the 45-day period,] without reasonable grounds, the medical bills shall not be compensable."
Whether interlocutory relief should be awarded is governed by 803 KAR 25:010 § 12. Among other things, this regulation requires that "[e]ntitlement to interlocutory relief shall be shown by means of affidavit, deposition, or other evidence of record demonstrating the requesting party ... [i]s eligible under Kentucky Revised Statute (KRS) Chapter 342[.]" 803 KAR 25:010 § 12(4)(a). Under KRS 342, no injury is covered unless it is a "work-related traumatic event or series of traumatic events, including cumulative trauma, arising out of and in the course of employment which is the proximate cause producing a harmful change in the human organism evidenced by objective medical findings." Thus, while an interlocutory award is subject to later revision, every interlocutory award of benefits is based upon a determination that the injury in question is fully compensable within the meaning of the Act.
In Garno v. Solectron-USA, W.C.B. Claim No. 2002-69633 (entered July 2, 2009), the Workers' Compensation Board acknowledged that the 45-day rule mentioned above, along with the 60-day rule specified in 803 KAR 25:096 § 11, both apply following the entry of an interlocutory award. In particular, the Board stated:
803 KAR 25:096 § 11, "Request for Payment for Services Provided or Expenses Incurred to Secure Medical Treatment," provides:
(1) If an individual who is not a physician or medical provider provides compensable services for the cure or relief of a work injury or occupational disease, including home nursing services, the individual shall submit a fully completed Form 114 to the employer or medical payment obligor within sixty (60) days of the date the service is initiated and every sixty (60) days thereafter, if appropriate, for so long as the services are rendered.
(2) Expenses incurred by an employee for access to compensable medical treatment for a work injury or occupational disease, including reasonable travel expenses, out-of-pocket payment for prescription medication, and similar items shall be submitted to the employer or its medical payment obligor within sixty (60) days of incurring of the expense. A request for payment shall be made on a Form 114.
(3) Failure to timely submit the Form 114, without reasonable grounds, may result in a finding that the expenses are not compensable.
[W]e reject Garno's contention she had no responsibility or duty, after the interlocutory opinion and order of ALJ Cowden dated March 26, 2006, amended by order of May 4, 2006, to submit her medical bills or Forms 114 requesting reimbursement for medical expenses she paid. ALJ Cowden certainly could have determined what medical expenses were to be paid as required by his Opinion, Order and Award. Pursuant to that order both carriers knew they were obligated to pay TTD, which they did. Garno's claim that she was not required to submit her medical bills and claim for reimbursement in spite of ALJ Cowden's opinion and order rings hollow. The carriers had an obligation to pay Garno's medical bills pursuant to the decision of ALJ Cowden. Likewise Garno and her medical providers were required to comply with the mandates of the statutes and regulations regarding timely submission of medical bills and requests for reimbursement.Id. at 23.
As an aside, we cite the Board's holding in Garno v. Solectron-USA, Claim No. 2002-69633 for three reasons. First, "[a]lthough our review of the Board's statutory interpretations is less deferential than our review of its factual determinations, nevertheless, an administrative agency's construction of its statutory mandate, particularly its construction of its own regulations, is entitled to respect[.]" Homestead Nursing Home v. Parker, 86 S.W.3d 424, 426 (Ky. App. 1999) (citations omitted). Second, the Board's holding in Garno illustrates why the Board's interpretation of its own statutory and regulatory mandates in this matter is entitled to no deference: aside from generally citing two of its own decisions predating Garno, the Board affirmed the ALJ in this matter, and thus determined that the 45-day period does not apply post-interlocutory award, without offering any support or explanation for contradicting its more recent decision in Garno. Third, the Board's holding in Garno that the 45-day period applies post-interlocutory award was affirmed by the Supreme Court of Kentucky and is binding precedent. In Garno v. Solectron USA, 329 S.W.3d 301, 305 (Ky. 2010), consistently with our discussion above, the Supreme Court stated:
We find no merit in the claimant's argument that her obligation to present reimbursement requests did not arise until a final award was entered because the interlocutory order would not have been enforceable. KRS 342.275(2) authorizes an ALJ to "grant or deny any benefits afforded under this chapter, including interlocutory relief . . . ." Moreover, KRS 342.305 permits a party to obtain a circuit court judgment in accordance with "an order or decision of the administrative law judge unappealed from . . . ." These provisions clearly permit the terms of an ALJ's interlocutory order and award to be enforced until superseded by a subsequent order or award.
To summarize: the mandatory deadlines specified in KRS 342.020(1) and its accompanying regulations apply "post-award," whether that "award" is final or interlocutory. With this in mind, we will now review the specifics of the ALJ's decisions regarding each of the medical disputes at issue in Western's appeal.
1. Medical fee dispute filed by Western on July 28, 2010, regarding medical treatment which Ben Cross received at the Centre for Neuro Skills at Irving, Texas.
The ALJ summarized and resolved this dispute as follows:
[Ben] became a resident/patient of the Centre for Neuro Skills in September, 2009. Pursuant to the ALJ's Interlocutory Order, the insurance company had made
arrangements with the Centre for Neuro Skills to pay for this treatment. On or about July 16, 2010, the insurance carrier received some bills for services rendered on April 22, 2010. The insurance carrier filed a Form 112 Medical Fee dispute denying payment of these bills. The Defendant/Employer disputes these expenses on the following grounds: the medical bills in question were not submitted within 45 days of the services provided.
It is the position of [Ben] that the 45-day time limit does not apply pre-award. . . . The ALJ finds that the 45-day time period for submission of medical expenses does not apply until a case is made final by an award or settlement. The Defendant/Employer is liable for this medical bill.
In light of our prior discussion, the ALJ erred in finding these bills compensable. Ben received the medical services represented in these bills after the interlocutory award was entered and during the time that the award remained in force, but his provider failed to submit a statement for these services within 45 days of rendering them. No grounds were offered to explain why the 45-day deadline was not met. Consequently, this part of the ALJ's judgment is reversed.
2. Medical fee dispute filed by Western on August 13, 2010, regarding medical treatment which Ben Cross received from UroMed, Inc. and Centre for Neuro Skills at Irving, Texas.
The ALJ summarized and resolved this dispute as follows:
On or about July 16, 2011, the insurance company received some bills from UroMed and the Centre for Neuroskills [sic] for services rendered on April 22, 2010. The insurance carrier filed a Form 112 Medical Fee Dispute denying payment of these bills. The Defendant/Employer disputes these expenses on the following grounds: the medical bills in question were not submitted within 45 days of the services provided.
It is the position of [Ben] that the 45-day time limit does not apply pre-award. Pursuant to the discussion above, the ALJ finds that the 45-day time period for submission of medical expenses does not apply until a case is made final by an award or settlement. The Defendant/Employer is liable for this medical bill.
The ALJ erred in finding these bills compensable. Ben received the medical services represented in these bills after the interlocutory award was entered and during the time that the award remained in force, but his provider failed to submit a statement for these services within 45 days of rendering them. No grounds were offered to explain why the 45-day deadline was not met. Consequently, this part of the ALJ's judgment is reversed.
3. Medical fee dispute filed by Western on August 30, 2010, regarding medical treatment Ben Cross received at the Centre for Neuro Skills at Irving, Texas.
The ALJ summarized and resolved this dispute as follows:
On or about August 27, 2010, the insurance company received some bills from UroMed and the Centre for Neuroskills [sic] for services rendered from February 17, 2010 through June 21, 2010. The insurance carrier filed a Form 112 Medical Fee Dispute denying payment of these bills. The Defendant/Employer disputes these expenses on the following grounds: the medical bills in question were not submitted within 45 days of the services provided.
It is the position of [Ben] that the 45-day time limit does not apply pre-award. Pursuant to the discussion above, the ALJ finds that the 45-day time period for submission of medical expenses does not apply until a case is made final by an award or settlement. The Defendant/Employer is liable for this medical bill.
The ALJ erred in finding these bills compensable. Ben received the medical services represented in these bills after the interlocutory award was entered and during the time that the award remained in force, but his provider failed to submit a statement for these services within 45 days of rendering them. No grounds were offered to explain why the 45-day deadline was not met. Consequently, this part of the ALJ's judgment is reversed.
4. Medical fee dispute filed by Western on March 4, 2011, regarding medical treatment which Ben Cross received at the Centre for Neuro Skills in Irving, Texas.
The ALJ summarized and resolved this dispute as follows:
On or about September 17, 2010 and September 24, 2010, the insurance company received some bills from the Centre for Neuroskills [sic] for services rendered from September 29, 2009 through July 9, 2010. The insurance carrier filed a Form 112 Medical Fee Dispute denying payment of these bills. The Defendant/Employer disputes these expenses on the following grounds: the medical bills in question were not submitted within 45 days of the services provided.
Does the employer have to pay these bills even though they were submitted more than 45 days after the services provided? Pursuant to the discussion above, the ALJ finds submission of medical expenses does not apply until a case is made final by award or settlement. The Defendant/Employer is liable for this medical bill.
The ALJ erred in finding these bills compensable. Ben received the medical services represented in these bills after the interlocutory award was entered and during the time that the award remained in force, but his provider failed to submit a statement for these services within 45 days of rendering them. No grounds were offered to explain why the 45-day deadline was not met. Consequently, this part of the ALJ's judgment is reversed.
5. Medical fee dispute filed by Western on September 9, 2009, regarding medical treatment which Ben Cross received at Brooke Army Medical Center in San Antonio, Texas.
Ben was taken to Brooke Army Medical Center on September 18, 2008, immediately after he was injured. He remained in that facility until June 15, 2009, at which time he was transferred to another facility. During the time he was at Brooke, Ben received a significant amount of medical treatment, including several surgeries. On or about September 4, 2009, Brooke sent a bill for its services to Western's workers' compensation insurance carrier. And, on September 9, 2009, Western filed a Form 112 Medical Fee Dispute denying payment of this bill.
Western disputed these expenses for two reasons. First, Western contended that the 45-day rule of KRS 342.020(1) barred this claim because, in its words:
Brooke Army Medical Center failed to submit a statement for services within forty-five (45) days of September 18, 2008, and failed to submit a statement every forty-five (45) days thereafter. The only bill submitted to the medical payment obligor (Midwestern Insurance Alliance) was received September 4, 2009, also more than forty-five (45) days after the discharge of Mr. Cross on June 15, 2009.
Second, Western argued that the face of the ALJ's interlocutory order did not obligate Western to pay for medical expenses incurred by Ben prior to July 15, 2009:
Presently, the employer, with claims administered by Midwestern Insurance Alliance, is only responsible for payment of benefits pursuant to interlocutory order rendered July 15, 2009. The order provides in part as follows: "The Defendant Employer shall pay said medical expenses incurred beginning with the date of this Order and continuing until further Order of the Administrative Law Judge." Pursuant to interlocutory order, the defendant employer is only responsible for medical expenses incurred beginning July 15, 2009 and continuing until further order. The defendant employer disputes the compensability of all claims related to the accident which occurred September 18, 2008, and is only responsible for medical benefits incurred beginning July 15, 2009, and continuing "until further Order of the Administrative Law Judge."
When the ALJ made a ruling on this medical fee dispute in the final order of December 8, 2011, he rejected Western's arguments and deemed these expenses compensable. We find no error in this regard. As noted in the second of Western's arguments, the parties and the ALJ agreed below that Ben's award of interlocutory benefits only made Western responsible for medical expenses Ben incurred "beginning July 15, 2009 and continuing until further order." Ben incurred his expenses with Brooke prior to his award of interlocutory benefits. Therefore, those expenses were not contemplated in the interlocutory award and were merely pre-award expenses until the ALJ later deemed them compensable in his December 8, 2011 final order. Consequently, per Haddix, the 45-day rule of KRS 342.020(1) did not apply to or bar the medical expenses Ben incurred at Brooke.
As the Supreme Court explained in a recent, albeit unpublished, opinion, "the deadline for submitting pre-award medical expenses" is specified in KRS 342.270(1), which "requires a worker to raise all known causes of action against the employer during the pendency of the application for benefits. It would bar compensation for outstanding medical expenses that a worker failed to raise during the pendency of the underlying claim." Wolford & Wethington Lumber v. Derringer, No. 2009-SC-000620-WC, 2010 WL 3377731 at *7 (Ky. Aug. 26, 2010). Ben's medical expenses with Brooke were pre-award expenses and, because Ben raised those expenses during the pendency of his application for benefits, they were timely submitted and properly compensable.
For this proposition of law, we find Derringer to be persuasive authority in this case and proper to cite as it fulfills the criteria of Kentucky Rules of Civil Procedure (CR) 76.28(4)(c).
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CONCLUSION
The Board committed no error in affirming the ALJ's decision to reject Western's defense of involuntary intoxication and hold Western liable for providing Ben Cross with benefits; in that regard, we affirm. As it relates to the medical fee disputes at issue in this matter, we reverse the Board in part to the extent discussed in this opinion.
TAYLOR, JUDGE, CONCURS
MAZE, JUDGE, CONCURS WITH SEPARATE OPINION.
MAZE, JUDGE, CONCURING: I entirely agree with the majority's reasoning and conclusions on the sufficiency of the evidence supporting the ALJ's rejection of Western's defense that Cross was voluntarily intoxicated. On the other hand, I am troubled by the majority's decision to reverse the ALJ's and the Board's conclusions regarding the medical fee dispute. But while I find this result to be harsh and unfortunate under the circumstances, the majority's legal reasoning is sound and we are thus compelled to reach this result.
As the majority correctly holds, KRS 342.040(1) and its accompanying regulations require a provider to submit a statement for services within 45 days from the date that treatment of a work-related injury is initiated and every 45 days thereafter. However, contrary to the conclusion of the ALJ and the Board, the 45-day deadline does not apply only to expenses incurred after the final award, but to all medical expenses incurred after the interlocutory award directing the employer to pay these expenses. Garno v. Solectron USA, 329 S.W.3d 301, 305 (Ky. 2010). As a result, the majority correctly holds that the medical expenses submitted by Cross's providers after the 45-day period were untimely.
I must also point out that 803 KAR 25:096, § 11 permits a claimant to submit medical expenses beyond this deadline upon a showing of reasonable grounds to excuse the delay. Considering the extent of Cross's injuries and the fact that all of his medical providers were located in Texas, it seems likely that Cross could have made this showing. But since the ALJ incorrectly concluded that the deadline did not apply, Cross did not attempt to present reasonable grounds for the failure of his medical providers to submit these expenses in a timely manner. In the absence of any evidence to support such a finding, I must reluctantly agree with the majority's decision to disallow these expenses. BRIEF FOR APPELLANT: R. Christion Hutson, Esq.
Paducah, Kentucky
BRIEF FOR APPELLEE, RONNIE
CROSS AS NEXT FRIEND OF
BENJAMIN RUSSELL CROSS:
Jeff V. Layson III
Bowling Green, Kentucky