AMERICAN GENERAL LIFE & ACCIDENT INSURANCE COMPANY COMP VS. HALL (SHARON), ET AL.
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RENDERED: MARCH 19, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-002010-WC
AMERICAN GENERAL LIFE AND
ACCIDENT INSURANCE COMPANY
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-93-48241
SHARON HALL; HON. GRANT
ROARK, ADMINISTRATIVE LAW
JUDGE; AND WORKERS'
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON AND CLAYTON, JUDGES; BUCKINGHAM,1 SENIOR
JUDGE.
1
Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
BUCKINGHAM, SENIOR JUDGE: American General Life and Accident
Insurance Company appeals from an opinion of the Workers’ Compensation Board
that vacated and remanded an opinion and order of an administrative law judge
(ALJ). American General asserts that the opinion of the ALJ was supported by
substantial evidence, was in conformity with KRS Chapter 342, and did not
constitute an abuse of discretion. We disagree and thus affirm.
Hall began working for American General as an insurance agent in
1989. She filed a workers’ compensation claim against American General,
alleging an injury date of July 15, 1993, for psychological injuries including
depression and post-traumatic stress disorder (PTSD), which she asserted occurred
as a result of sexual harassment by her supervisor.
On April 29, 1996, the ALJ issued an opinion, order, and award,
finding that Hall had sustained a compensable psychological injury as a result of
sexual harassment in the workplace. Specifically, the ALJ found that Hall had
sustained an occupational disability of 50 % as a result of the harassment.
American General was ordered to pay reasonable, necessary, and related medical
expenses pertaining to Hall’s psychological injury. Thereafter, Hall reopened her
claim and was found on December 11, 2001, to be permanently and totally
disabled as a result of her psychiatric condition.
Since 1995, Hall has been receiving treatment from psychiatrist Dr.
Charles Shelton. That treatment has consisted of psychiatric therapy as well as
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numerous psychiatric medications including Bupropion, Prozac, Temazepam,
Dextrostat, Ativan, Wellbutrin, Remeron, and Risperdal.
On February 16, 2004, Dr. Shelton issued a treatment plan for Hall in
which he stated that she was still being treated for PTSD related to the work injury
in July 1993. Dr. Shelton advised that he was currently prescribing eight
medications to Hall, including Effexor, Lorazepam, Wellbutrin, Dextrostat,
Risperdal, Ambien, Neurontin, and Remeron. Dr. Shelton stated that in his opinion
the need for all those medications was related to the PTSD and depression that Hall
incurred as a result of her work injury.
Thereafter, on August 16, 2006, Dr. Robert Granacher performed a
psychological examination of Hall. On that date, Hall complained of depression,
poor concentration, and memory impairment. In addition, she reported that she did
not get out of bed and could not keep track of her medications. Dr. Granacher
noted that Hall was taking seven psychiatric medications, including Lorazepam,
Temazepam, Bupropion, Cymbalta, Risperdal, Remeron, and Dextrostat.
Dr. Granacher found that during the course of the examination, Hall
demonstrated a significantly reduced level of cognitive functioning. He noted that
she arrived a day late for the examination, appeared to be confused and staggering,
displayed poor attention and concentration, and was slurring her speech. Dr.
Granacher ultimately diagnosed dementia and aggravation of confusion and
dementia symptoms from excessive psychiatric medication. Dr. Granacher
initially concluded that Hall’s current mental state was related to an emerging
-3-
dementia and not to her original claim of sexual harassment. Accordingly, he
assigned a 0 % whole body psychiatric impairment in relation to the work injury.
Subsequently, Dr. Granacher provided testimony in this claim on
January 23, 2007. At that time, he confirmed that he had evaluated Hall on two
separate occasions, both on April 25, 1995, during her original claim, and again on
August 16, 2006. Dr. Granacher testified that Hall demonstrated an entirely
different presentation during the second visit of August 16, 2006. He stated that at
the initial examination, she was functioning at a normal level of intelligence but
that at the time of the second examination exhibited significant cognitive decline.2
Dr. Granacher explained that as Hall appeared remarkably different in
2006, he proceeded to conduct a neuropsychiatric evaluation and also to conduct
an MRI scan of the brain, which revealed white matter changes in portions of the
brain, as well as an abnormal genetic defect indicating the presence of dementia
likely related to Alzheimer’s disease. He found that the likelihood of Hall having
Alzheimer’s was higher than 90 %. Dr. Granacher estimated that Hall was in the
moderately impaired range of Alzheimer’s disease patients and estimated her
current life expectancy at between six and eight years. Dr. Granacher also again
testified as to his belief that Hall was being overmedicated by her treating
physician.
2
Dr. Granacher stated that Hall scored below the first percentile in cognitive capacity on the
Mini-Mental State Exam during the 2006 evaluation, compared to a score in the 18th to 27th
percentile when he examined her in 1995.
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Thereafter, on April 30, 2007, Dr. Shelton issued a supplemental
report in which he stated that he has been treating Hall on a regular basis for
depression and PTSD since 1994 and that he had last examined her on February
13, 2007. During the February 13, 2007, examination, Hall reported an increase in
nightmares and flashbacks, which Dr. Shelton attributed to a discontinuation of
various medications.3 Dr. Shelton stated that Hall still suffers from PTSD with
onset as a result of sexual harassment and that she needed to continue her current
treatment regimen. At that time, he also noted that a mini-mental status
examination had been performed with a score of 29 out of 30, which he believed
was not indicative of dementia.
Dr. Granacher subsequently issued a supplemental report on April 30,
2007. In that report, he confirmed that Hall was grossly confused and exhibited
slurred speech during the August 16, 2006, examination. Accordingly, Dr.
Granacher stated that he was standing by his opinion that Hall was showing
evidence of dementia, but he also explained that it was possible that Hall’s poor
level of functioning was due to her excessive use of medication.
On the basis of Dr. Granacher’s findings, American General initiated
a medical fee dispute on September 7, 2006. Due to concerns regarding Dr.
Granacher’s diagnosis of dementia, Hall was referred to Dr. Timothy Allen for a
University Psychiatric Medical Evaluation. That evaluation was performed on
September 5, 2007. Dr. Allen noted that on that date, Hall presented with
3
The medications were discontinued because Hall’s workers’ compensation payments for those
medications had ceased.
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complaints of depression, along with fear and anxiety related to being in public or
meeting strangers. Dr. Allen noted that Hall was currently taking Fosamax,
Fluoxetine, Temazepam, Risperdal, Wellbutrin, and Remeron for her
psychological symptoms.
As part of the evaluation, Hall underwent a series of psychological
tests that were administered by Dr. John Ranseen and reviewed by Dr. Allen.
According to Dr. Allen, that testing revealed that Hall provided adequate effort and
did not attempt to feign impairment. It was noted that Hall did not exhibit
cognitive impairment on tests, but she appeared quite distractible, cognitively
inefficient, and emotionally labile during the course of the evaluation. Further, it
was noted that the testing suggested long-standing, severe personality disorder,
perhaps aggravated by intense stress at the time of the evaluation.
After reviewing the test results, Dr. Allen diagnosed major depressive
disorder, borderline personality traits, osteoporosis, and moderate social isolation.
He also stated that Hall suffers from depression and symptoms of PTSD, although
he did not actually diagnose PTSD, as he believed that Hall did not meet enough of
the criteria for that diagnosis. Dr. Allen further opined that testing revealed Hall to
be of average intelligence and normal memory on two separate measures and that
there was no evidence of dementia, cognitive problems, or other neurological
process. Dr. Allen felt that Hall may have been overmedicated during her
evaluation and testing with Dr. Granacher, which could have led to Dr.
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Granacher’s diagnosis of early onset dementia. Dr. Allen opined that Hall required
ongoing psychiatric treatment for recurrent major depression.
On November 16, 2007, Dr. Allen provided testimony in this claim.
At that time, he confirmed the findings in his report and again explained his belief
that Hall was likely overmedicated at the time of her examination with Dr.
Granacher but that Dr. Granacher’s diagnosis of dementia was reasonable in light
of Hall’s performance during his evaluation. Dr. Allen also provided testimony
concerning reasonable psychiatric treatment, explaining that Hall needed ongoing
medication therapy, as well as four visits with her psychiatrist per year. In so
doing, Dr. Allen specifically stated,
I also believe that there has to be a reconsideration of her
medication regimen. She’s on, as I recall, six psychiatric
medications, three anti-depressants, a sedative, an antipsychotic, and a stimulant. It would be wise for her
treating physician to either get a colleague’s consult or
sort of reconsider the effective – the side effects of all
these medications.4
Further, Dr. Allen stated that
[I]t would be quite unusual for someone with a diagnosis
of major depression to be on six psychiatric medications.
I think the goal should be two to three at max, and there
should be strong consideration that she might have
increased problems due to side effects of all these
medications.5
4
See November 16, 2007, deposition of Dr. Timothy Allen, p. 20.
5
Id.
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During the course of his deposition, Dr. Allen explained that his
biggest concern was the sedative medication, as it could have long-term effects on
Hall’s cognition. Dr. Allen also stated that, based upon the records that he
reviewed, Hall has not improved during her long-term psychological treatment
with Dr. Shelton, remarking that “the aggressive medication management she’s
had has not really improved her very much, which further raises my concern for
her being on six psychiatric medications.”6
Nevertheless, on cross-examination, Dr. Allen conceded that Hall
required continued treatment with some adjustment of her medication in order to
remain stable. He stated that, in his opinion, Dr. Shelton had overall done a pretty
good job in trying to keep a handle on Hall’s current condition. Ultimately, with
respect to which antidepressants to prescribe and in what combination, Dr. Allen
opined that it was difficult for him to comment.
Subsequently, Dr. Granacher issued a final report on September 24,
2008, following a review of additional records, including the report of Dr. Allen
and Dr. Allen’s deposition. In his final report, Dr. Granacher again reiterated that
he questioned the extreme number of medications Hall is currently receiving. He
further explained that her medication levels were so high at the time of his August
16, 2006, examination that Hall failed a dementia examination commonly used to
assess Alzheimer’s patients. Nevertheless, Dr. Granacher acknowledged, based on
Dr. Allen’s examination, that he does not now believe that Hall has Alzheimer’s
6
Id. at 21-22.
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disease and, instead, attributed her reduced cognitive functioning to
overmedication.
With respect to future treatment, Dr. Granacher recommended a single
antidepressant of Hall’s doctor’s choice and, if augmentation was required to
enhance the antidepressant, the use of either Risperdal 1 mg or Abilify 2 mg, as
well as a simple hypnotic such as Temazepam for sleep. Dr. Granacher did not
believe it was reasonable to prescribe amphetamines in a case of Hall’s nature and
again stressed his opinion that sexual harassment 15 years previously would not be
expected to produce, in any reasonable person, such a severe mental syndrome as
to require the treatment that Hall is now receiving.
Dr. Shelton also issued a final report on October 16, 2008, stating that
he believes his current course of treatment to be both reasonable and necessary.
Dr. Shelton reiterated his opinion that Hall suffers from major depression and
PTSD. He further stated that the resistant nature of her condition requires
aggressive pharmacotherapy, which allows her to maintain some degree of
functionality and has allowed for some degree of improvement. In that report, Dr.
Shelton explained specifically why he believed each of the medications prescribed
are necessary. Additionally, Dr. Shelton attributed Hall’s behavior during the
course of Dr. Granacher’s evaluation to anxiety.
On April 17, 2009, the ALJ issued an opinion and order. Therein, he
concluded that not all medications being prescribed to Hall by Dr. Shelton were
reasonable and necessary. In so finding, the ALJ relied upon the opinions of Dr.
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Granacher and stated that he believed the opinions of Dr. Granacher to be
supported by those of Dr. Allen, which he stated were afforded presumptive
evidentiary weight pursuant to KRS 342.315. Accordingly, the ALJ held that Hall
should be maintained on only a single antidepressant, either Risperdal 1 mg or
Abilify 2 mg, as well as a single hypnotic like Temazepam.7
Thereafter, Hall filed a petition for reconsideration on April 24, 2009,
which was overruled by the ALJ in an order dated May 14, 2009. Hall then
appealed to the Board, arguing that American General had not met its burden of
proof to establish that Dr. Shelton’s treatment regimen was unreasonable or
unnecessary and, further, that the ALJ’s opinion was not supported by substantial
evidence.
After reviewing the matter, the Board issued an opinion on September
28, 2009, in which it concluded that the opinion of Dr. Allen did not support the
medical conclusions of Dr. Granacher. Accordingly, the Board vacated the ALJ’s
order and remanded the matter to the ALJ for additional findings on the part of the
ALJ, explaining why the more measured approach recommended by Dr. Allen
should properly be rejected. It is from that finding by the Board that American
General now appeals to this Court.
On appeal, American General argues that the Board substituted its
opinion for that of the ALJ as to the weight of the evidence on a question of fact,
7
While we find the ALJ’s award in this regard to have been worded rather confusingly, we
believe the ALJ’s intention was to award compensation for one antidepressant, to be augmented
by either Risperdal 1 mg or Abilify 2 mg, as well as a single hypnotic like Temazepam.
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specifically arguing that the opinions of Drs. Granacher and Allen constitute
substantial evidence and that the ALJ was entitled to rely on those opinions in his
findings. Further, American General disagrees with the Board’s determination that
the report of Dr. Allen does not support the conclusions of Dr. Granacher.
American General asserts that, to the contrary, Dr. Allen agreed with Dr.
Granacher that a reconsideration of Hall’s medications was necessary, noting that
Dr. Allen suggested a goal of two to three medications at the most.
In a post-award medical fee dispute, it is the employer who bears the
burden of proving that the contested medical expenses are unreasonable or
unnecessary. See Square D Company v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993);
National Pizza Co. v. Curry, 802 S.W.2d 949, 951 (Ky. App. 1991). It is the
burden of the claimant to prove work-relatedness. See Addington Resources, Inc.
v. Perkins, 947 S.W.2d 421, 423 (Ky. App. 1997). Further, we note that when
reviewing a decision of the Workers’ Compensation Board, the function of the
Court of Appeals is to correct the Board only where it 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. Western Baptist
Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
The Board’s opinion in this case stated in part as follows:
In this case, although both Dr. Allen and Dr. Granacher,
on whom the ALJ relied, felt Hall was overmedicated, it
is clear from reading Dr. Allen’s deposition that he never
concluded that Dr. Shelton’s treatment was not
reasonable or not necessary. Rather, he recommended
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that Dr. Shelton obtain a colleague’s consult or
reconsider the side effects of all the prescribed drugs. In
acknowledging his concern on Hall’s cognitive
functioning of the combined effects of the drugs, Dr.
Allen concluded it would be difficult for him to comment
on which of the antidepressants to prescribe and in what
combination.
The Board finally concluded by stating that
Contrary to the ALJ’s assertions, Dr. Allen’s opinion,
which is to be given presumptive weight, does not
support Dr. Granacher’s conclusions. This is specifically
true when Dr. Allen acknowledged on cross-examination
that Dr. Shelton overall had done a pretty good job in
trying to keep a handle on Hall’s current condition.
To summarize the views of the three doctors as to the appropriate
amount of psychiatric medications that Hall should be taking: Dr. Shelton, Hall’s
treating physician, was prescribing her six different medications based on his belief
that she still suffers from PTSD; Dr. Granacher concluded that Hall was no longer
suffering from PTSD and should be prescribed a single antidepressant (as well as
something for sleep) with perhaps a drug such as Abilify if augmentation of the
antidepressant was necessary; and Dr. Allen, who also did not diagnose PTSD but
acknowledged symptoms of that disorder, took somewhat of the middle ground
and concluded that Dr. Shelton should either get a colleague’s consult or
reconsider the side effects of all her medications. Dr. Allen stated that the goal
should be for Hall to be prescribed two to three psychiatric medications “at max”
because it “would be quite unusual for someone with a diagnosis of major
depression to be on six psychiatric medications.”
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The opinion of the University Medical Evaluator (Dr. Allen) is
entitled to presumptive weight. KRS 342.315. As stated by the Board, Dr. Allen’s
opinion provided the “more measured approach” in dealing with the appropriate
amount of medications that should be prescribed by Hall. We disagree with the
ALJ’s conclusion that Dr. Allen’s opinion is more consistent with that of Dr.
Granacher, who concluded that Hall’s medications should be reduced to a single
antidepressant contrary to the treatment of her treating physician and the
“measured approach” of the university evaluator. See Whitaker v. Peabody Coal
Co., 788 S.W.2d 269, 270 (Ky. 1990).
Therefore, we affirm the Board’s opinion.8
CLAYTON, JUDGE, CONCURS.
CAPERTON, JUDGE, DISSENTS.
BRIEF FOR APPELLANT:
Ronald J. Pohl
P. Gregory Richmond
Lexington, Kentucky
BRIEF FOR APPELLEE, SHARON
HALL:
Thomas W. Moak
Prestonsburg, Kentucky
8
We note that the Board’s opinion merely vacates the ALJ’s decision for additional findings
with possibly a different result.
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