Aramark/Eastern KY Correctional Complex v. Walters, 020521 KYWC, 200782415

Case DateFebruary 05, 2021
CourtKentucky
ARAMARK/EASTERN KY CORRECTIONAL COMPLEX PETITIONER
v.
MICHELLE LAROSE WALTERS DR. IRA POTTER and HON.W. GREG HARVEY, ADMINISTRATIVE LAW JUDGE RESPONDENTS
No. 200782415
Kentucky Workers Compensation
Commonwealth of Kentucky Workers’ Compensation Board
February 5, 2021
         APPEAL FROM HON.W. GREG HARVEY, ADMINISTRATIVE LAW JUDGE.           BEFORE: ALVEY, Chairman, STIVERS and BORDERS, Members.          OPINION AFFIRMING           STIVERS, Member.          Aramark/Eastern KY Correctional Complex (“Aramark”) seeks review of the October 16, 2020, Opinion and Order of Hon. W. Greg Harvey, Administrative Law Judge (“ALJ”) resolving a medical fee dispute it filed in favor of its former employee, Michelle Larose Walters (“Walters”). The ALJ determined “Tramadol and Duloxetine are medically reasonable and necessary to treat the work injury.” Aramark also appeals from the November 4, 2020, Order overruling its Petition for Reconsideration.          On appeal, Aramark challenges the ALJ’s decision asserting the ALJ erroneously relied upon Dr. Ira Potter’s report because his opinions were based upon substantially inaccurate information. In a companion argument, Aramark asserts that the ALJ’s decision is not based upon substantial evidence.          BACKGROUND          On March 9, 2009, Walters filed a Form 101 alleging a July 5, 2007, injury while in the employ of Aramark when she was “assaulted by a male inmate weighing approximately 150 to 160 pounds.” As a result of the injury, Walters alleged a back injury with pain radiating down her left leg. On July 23, 2010, Hon. Douglas W. Gott, now Chief Administrative Law Judge, approved a settlement agreement resolving Walters’ claim. The settlement agreement reflects Walters underwent a discectomy performed by Dr. Phillip Tibbs at the University of Kentucky. In addition to temporary total disability (“TTD”) benefits, Walters received a lump sum payment. Although she waived her right to vocational rehabilitation, she did not waive her right to reopen or her entitlement to future medical benefits.          In 2011, Walters filed a Motion to Reopen asserting a change of condition. Thereafter, the parties entered into a settlement agreement approved by Hon. Jonathan R. Weatherby, Administrative Law Judge on September 5, 2012. The settlement agreement reflects that after the first settlement, Walters underwent fusion surgery performed by Dr. Tibbs. Walters received TTD benefits from February 16, 2011, through June 28, 2011, and a lump sum of $55,000.00. The impairment ratings assessed by three physicians ranged from 25% to 30%. As part of the settlement agreement, Walters waived her future right to reopen seeking additional income benefits. Dr. Potter was listed on the Form 113/Designation of Physician attached to the settlement agreement.          On April 7, 2020, Aramark filed a Motion to Reopen disputing the work-relatedness, reasonableness, and necessity of Tramadol and Duloxetine.1Attached to the motion is Dr. Kevin Tomsic’s March 9, 2020, Utilization Review report, Dr. David Jenkinson’s September 17, 2019, Independent Medical Evaluation (“IME”) report, and the medical records of Pikeville Medical Center spanning the period from June 20, 2019, through November 21, 2019. Walters introduced a questionnaire completed by Dr. Potter on July 27, 2020.          Walters testified at the August 21, 2020, hearing that she has not worked since her July 5, 2007, lower back injury. She provided the following testimony concerning the nature of the injury:
Q: Okay. And you had mentioned a couple of areas just a moment ago where you’re experiencing some symptoms. What exactly did you injure on July 5th of 2007?
A: My lower back area, there was injury to discs, herniated discs, which I have had two surgeries since then, one being a fusion. I continue to experience low back pain, burning radiating down my legs, even into my feet and my toes, constant cramping and such.
         Walters recounted her current work-related symptoms:
Q: All right. And what are your current work-related symptoms? You had mentioned a couple of them a moment ago, if you wouldn’t mind going over those just one more time.
A: Constant lower back pain, throbbing that never goes away. It can radiate down into both legs and into my feet. My left leg has always been worse than my right with cramping and spasms in my thigh and calf. But my right leg has gotten progressively worse over time.
         Since 2007, Dr. Potter has provided ongoing medical care for the work injury. He sees Walters every three months at which time they discuss her symptoms. Walters described Dr. Potter’s treatment as follows:
Q: And have you reported these symptoms to Dr. Potter at each and every evaluation?
A: Yes, sir.
Q: Very good. What types of treatment has Dr. Potter recommended for you both now and in the past to treat your work-related symptoms?
A: I remember in the beginning when it first occurred, I did a stretch of physical therapy that proved not to be helpful. And that’s when he did a MRI and I was then sent to UK to a neurosurgeon, Dr. Kemp. We have tried different prescription regimens, different muscle relaxers and such, including narcotics which I won’t take. I prefer not to, if at all possible. If I can manage without it, I don’t want it.
Q: Okay.
A: I did physical therapy after the second surgery back in 2011 for, I believe it was a few months.
Q: Okay. And what current medications does Dr. Potter recommend for treatment of your work-related symptoms?
A: I currently take Cymbalta or it’s the Duloxetine, Tramadol, and Robaxin.
         Walters explained why she currently refuses to take narcotics:
Q: And why aren’t you taking narcotics now?
A: I prefer not to take anything that is proven to be highly addicting, if not at all necessary. If there comes a time I will reconsider in the future but if I can manage my pain without it, I prefer not to.
Q: But is it fair then that Dr. Potter has felt that narcotics would be better suited at some time to treat your pain?
A: He has on a couple different occasions prescribed narcotics. The second time being last year after the incident in June and I did take a couple of pills over a three month period. And I brought him the rest and told him I didn’t want them, I preferred not to. I had children to take care of and such and I don’t want to be unable to care for them in any way.
         Walters recounted the event of June 2019 and her subsequent treatment:
Q: That’s a poorly worded question. Why don’t you tell us what happened last summer that caused you to need narcotics?
A: I was just doing everyday things and I guess I was taking clothes out of the dryer with my son and my children help me do – do housework. And I moved just right of something and I felt a stabbing, burning pain move across my lower back across my hips, which I did go to the ER for. And a CAT scan was done or a CT scan and it showed that I have another herniated disc or a bulging disc above the fusion, which they said could very well be related where that area of my back takes the brunt of everything now.
Q: Has this prescription regimen that Dr. Potter has had you on changed over time? Have you tried other medications?
A: I have. We’ve tried different muscle relaxers, he has tried something in place of the Cymbalta called Gabapentin. Number one, it did not help my symptoms; number two, I had extreme side effects mentally. I didn’t know if I was coming or going. It just made me very woozy in my brain. It just made me very anxious and unnerving.
Q: All right.
A: And I requested to be taken off it. I didn’t want that anymore.
         Walters estimated she has been taking the medications at issue for approximately five years. She discussed the benefits she receives from the medications:
Q: All right. And do they seem to control your symptoms or at least allow you to enjoy life a bit more?
A: It does help
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