LOVE (LONZIE) VS. COMP AIK , ET AL.
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RENDERED: MAY 20, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2011-CA-000113-WC
LONZIE LOVE
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. 2004-00241
AIK (INSURER FOR FORMER
EMPLOYER, HAZARD ARH);
HON. DOUGLAS GOTT,
ADMINISTRATIVE LAW JUDGE;
and WORKERS’ COMPENSATION
BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON, MOORE, AND STUMBO, JUDGES.
MOORE, JUDGE: Lonzie Love appeals from an August 25, 2010 opinion and
order of an Administrative Law Judge (ALJ) resolving a medical fee dispute in
favor of AIK, and the subsequent opinion of the Workers’ Compensation Board
affirming the ALJ’s decision. Love only appeals the ALJ’s determination that she
was not entitled to continuing pain management treatment. After careful review,
we affirm.
I. FACTUAL AND PROCEDURAL HISTORY
The first record tracing the genesis of Love’s alleged work-related
injury is a July 23, 2002 chart note from Dr. Joseph Williams, Jr., a neurosurgeon
in Hazard, Kentucky. Love consulted with Dr. Williams under her private plan of
health insurance. In relevant part, his chart note states:
COMPREHENSIVE HISTORY CHIEF
COMPLAINT: Patient comes in today with chief
complaint of back pain, right and left leg pain coming on
since about January 2002.
HISTORY OF PRESENT ILLNESS: Patient is a 36
year old right handed white female has [sic] been having
problems with low back and right and left leg pain that
just sort of came on. She really does not know any
particular incident. She does do work in the endoscopic
suite and does do a lot of pulling and pushing of large
patients off and on the examining table. She has been
having this back and right leg pain intermittently since
January. It has worked its way up to about 6 out of 10
now. It goes down both legs when she gets it. She states
that her pain seems to start in about her low back and
then goes down both legs. She states that most of her
pain is in her thigh area when she gets it and sometimes
works it [sic] way down below her knee.
Thereafter, Dr. Williams ordered a magnetic resonance image (MRI)
of Love’s lumbosacral spine, which was performed on August 9, 2002. To this
effect, the record contains a radiology report of Dhiren Desai, M.D., noting “mild
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to moderate degree of concentric disk bulge of L4 disk lateralizing towards the left
with pressure impression on the ventral left aspect of the thecal sac.”
On August 21, 2002, Love submitted an incident report to her
employer, Hazard ARH, alleging that she had suffered a work-related injury.
Hazard ARH provided Love with a list of doctors approved by its workers’
compensation carrier, which included Suzanne Dansereau, M.D. Love consulted
with Dr. Dansereau on September 4, 2002. In relevant part, Dr. Dansereau’s
consultation note states:
This 37-YOW, who works as a nurse at Hazard ARH,
had some problems with some lower back pain. She’s
had some long-standing problems for the past several
months, even pre-dating injury sustained on 07/19/02.
Before that time, she’d had some pain, especially premenstrually in the lower back, radiating down into the
left thigh area. Sometimes it will go to her ankle. She
said it wasn’t very serious. It wasn’t continuous. On
07/19/02, she was working assisting with Colonoscopy
where she had to pull and twist a particularly heavy
patient. It was in the 2 weeks after that she noticed an
increase in pain in the back going to the left side, down
the left leg and into the ankle area.
On January 29, 2004, Love filed her workers’ compensation claim in
this matter. In her application, she described in detail the nature and origin of her
alleged injury:
I was working in endoscopy with a sedated patient. The
doctor was unable to get the scope into the patient
because she was one [sic] her right side and sedated. He
asked me to move her onto her back and he was still
unable to get the scope inserted. I then had to move her
back onto her side. The patient weighed around 400
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pounds. I felt an immediate onset of pain in my low
back.
On May 6, 2004, Love was deposed in this matter. The following
exchange occurred regarding the origin and nature of Love’s alleged injury and, in
particular, Dr. Dansereau’s consultation note:
Q: Dr. Dansereau says that you have had long standing
problems for the past several months even pre-dating
your injury of July 19th of 2002?
Love: I was referring to the leg pain. I had told her that I
had leg pain four to six weeks prior to that incident.
Q: Before the work related injury you had had leg pain
for four to six weeks?
Love: Yes, sir.
Q: You didn’t have any back pain before the incident?
Love: No.
Q: Do you know what the cause of your leg pain was?
Love: I just took it that, you know, I was working on the
—I mean walking on the treadmill and I figured that may
be what it was caused from.
Q: Okay. And she says before the injury you had some
pain, low back radiating down into the left thigh,
sometimes it would go into your ankle?
Love: That was after the incident.
Q: Okay. But she has got it before the incident. That
would be incorrect?
Love: That would be incorrect.
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Q: So just so I understand it—before the incident you
had never treated for any kind of back pain other than ten
years ago at Mary Breckinridge Hospital and you had an
x-ray only?
Love: Exactly.
On August 17, 2004, the parties in this matter, which included Love,
Hazard ARH, and Hazard’s workers’ compensation carrier, AIK, entered into an
approved settlement in which Love received a $7,500 lump sum and preserved her
right to reopen this matter with regard to “Medical benefits as it relates to the L4-5
region only of the back.” As such, the origin and nature of Love’s alleged injury
was never adjudicated.1
Prior and subsequent to the settlement, and continuing until June,
2009, Love maintained full-time employment as a licensed practical nurse, or
“LPN.” Specifically, Love testified that she continued her employment with
Hazard ARH until she was terminated in April, 2008, for taking prescription
medication that had not been prescribed for her use. Thereafter, she was employed
by Shepherd’s Medical from April, 2008, to October, 2008; Hyden Nursing Home
from October, 2008, to February, 2009; and again at Shepherd’s Medical, from
February, 2009, to June or July, 2009. Love testified that during this time, there
were occasions where she experienced no back pain at all.
1
Where an award originates from a settlement approved by an ALJ, rather than an ALJ’s
judgment, res judicata does not preclude an employer from raising any issue which could have
been previously considered upon an employee’s original application for benefits. See KRS
342.125(7); Newberg v. Davis, 841 S.W.2d 164 (Ky. 1992); Beale v. Faultless Hardware, 837
S.W.2d 893 (1992); see also Whittaker v. Hurst, 39 S.W.3d 819, 821 (Ky. 2001) (holding that
upon reopening a settlement award an employer was permitted to contest the very existence of
the disease upon which that award was based).
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Love also testified that since her July 17, 2002 injury, she has always
taken some kind of pain medication for her lower back and has repeatedly sought
treatment. That aside, the record in this matter contains only a few medical reports
indicating that Love sought any kind of treatment for her lower back between the
date of the settlement and June, 2009, and the information contained in those
medical reports is limited.
The first of these reports is dated December 15, 2005, authored by
Scott D. Stevens, M.D., and it regards an MRI of Love’s lower back that was
requested by Dr. James Bean, one of Love’s treating physicians. Similar to Dr.
Desai’s August 9, 2002 report, this report notes “At L3-4, there is a mild diffuse
disc protrusion, with mild mass effect on the ventral aspect of the thecal sac.”
Additionally, it states “At L4-5, there is degenerative disc disease present. There is
a broad-based small-moderate sized left paracentral and left lateral disc protrusion
at L4-5. This has mass effect on the left ventral aspect of the thecal sac.” The
report does not contain findings indicating what caused these conditions, nor is any
treatment indicated.
The second report is a March 11, 2010 medical opinion, rendered by
Dr. Werner Grentz, which mentions that Love “was seen by Dr. [Caesar] Agtarap2
in 2005-06 who was writing her pain medication.” The record contains no
information directly from Dr. Agtarap or his office, and only includes a few
inferences regarding his treatment of Love and when it occurred. In her
2
The record in this matter also refers to Dr. Agtarap as “Dr. Agtrap,” “Dr. Agatarap,” and “Dr.
Agtrapp,” but gives no indication of the proper spelling of his last name.
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deposition, Love testified that Dr. Agtarap was a pain specialist who had provided
her with pain management at clinics based in Manchester and Jackson, Kentucky.
Love further testified that Dr. Agtarap had written her prescriptions for Oxycontin,
morphine, Xanax, and Percocet, among other pain medications, and that he had, at
some point, given her at least one epidural injection to treat her lower back pain.
Finally, the record contains a May 25, 2009 report regarding Love’s
admission to the emergency room at Mary Breckinridge Hospital, written by an
internal medicine specialist, Dr. Roy Varghese. The note lists Love’s symptoms as
“muscle spasm,” “CVA tenderness,” and “vertebral point-tenderness.” The note
states that Love’s “current medications” included Percocet, and further describes
Love’s chief complaint as “[i]njury @ work from ’02, low back pain 9/10 on scale
tonight.” In his later deposition Dr. Varghese would testify that when he made this
remark, his only understanding of Love’s injury came from his reading of the
December 15, 2005 MRI report, referenced above, and what Love had told him
during her visit about the history of her injury.
Around the beginning of June or July, 2009, Love quit working,3
claimed that her back pain had grown markedly worse, and continued to assert that
the source of her back pain was her alleged injury of July 19, 2002. By contrast,
Dr. Grentz’s above-referenced March 11, 2010 medical opinion states that Love
had been doing “fairly well until June 2009 when she ‘raised out of bed’ and noted
worsening of her pain.” On June 16, 2009, Love went to the University of
3
Love briefly returned to working as an LPN on October 21, 2009, but resigned two days later
after claiming that her lower back pain made this work too difficult for her.
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Kentucky Family Practice Clinic and another MRI of her lower back was
conducted. A report regarding this MRI, dictated by Shardan M. Radmanesh,
M.D., noted:
1. Disc protrusion at the L3/4 level with mild left
neuroforaminal stenosis and displacement of the L4
nerve root.
2. Broad-based disc bulge at the L4/5 level with an
annular tear and moderate neuroforaminal stenosis on the
left. There is compression of the left L5 nerve root. Pain
related to outer annular tear is likely.
The record does not indicate that Love sought further treatment for
her back immediately following her June 16, 2009 MRI. However, on August 29,
October 23, and December 12, 2009, Love drove herself to the emergency rooms
of Hazard ARH and Mary Breckinridge Hospital, complaining of severe, chronic
back pain. Each time, Love was treated with pain medication. The memoranda
regarding her August and December visits also indicate that Love was released
within a short period of time. The records of her October visit indicate that Love
presented at the Hazard ARH emergency room with “fever with chills” in addition
to complaints of chronic lower back pain, but was discharged the next day after her
fever resolved.
In her depositions, Love also testified that her pain medications had
been stolen from her on two different occasions during this period of time—once
in June or July, 2009, and again in December, 2009. Love testified that the latter
theft had been committed by a member of her family whom she refused to identify.
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Love testified that she had improperly disposed of approximately eight Oxycontin
pills while treating with Dr. Agtarap. And, Love testified that Dr. Agtarap had
dropped her as a patient after she had violated the terms of their pain management
agreement by testing positive for medication he had not prescribed for her use.
The record also contains a February 11, 2010 letter from Love’s
subsequent pain management provider, Dr. Luis Vascello, to AIK. There, Dr.
Vascello informed AIK that he would be dropping Love from his practice because
of what he described as Love’s “erratic behavior” in seeking the results of a urine
drug screen, and “her unwillingness to undergo a psychological evaluation and
psychological assistance, and her lack of compliance with [his] treatment plan[.]”
Beginning in March, 2010, Love resumed her pain management
treatment, this time with Dr. Grentz at Kentucky Pain Management Services. In
relevant part, Dr. Grentz’s progress note of March 31, 2010, assessed Love’s
condition as:
1.
2.
3.
4.
5.
6.
7.
8.
9.
Chronic pain-moderate to severe
Lumbar radiculopathy
Unspecified arthrophy in other specified sites
Degenerative disc disease (DDD) – lumbar spine
Facet joint arthropathy
Intervetebral disc disorder (DO) – lumbar spine
Spinal stenosis – lumbar spine
Lumbago, myofasciitis
Opioid dependence.
Thereafter, Love continued to see Dr. Grentz on a monthly basis, and
Dr. Grentz’s pain management regime for Love consisted of prescriptions for
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Percocet, Xanax, Trazadone, and Fentanyl patches. Also, on April 27, 2010, Dr.
Grentz performed injective therapy on Love’s lower back at the L5-S1 disc space.
Dr. Grentz’s March 31, 2010 note, and his prior note of March 11, 2010, both
conclude with “The patient has been advised to follow up in this clinic in 28 days,
or with the family physician.”
With the foregoing in mind, we return to January 19, 2010. On this
date, AIK moved to reopen Love’s approved settlement to dispute whether it was
liable to pay for the emergency room treatment Love received on December 12,
2009. On April 10, 2010, AIK also received the bill relating to Love’s October 23
and 24, 2009 emergency room treatment and added this bill to its dispute. Finally,
AIK disputed whether it had any liability to pay for the continuing pain
management treatment and medication management Dr. Grentz was providing for
Love.
AIK’s argument for reopening was that the sum of these treatments
was neither related to, nor reasonable and necessary for the treatment of, Love’s
alleged injury of July 19, 2002. In support, AIK offered medical opinions from
several doctors, including Dr. Ellen Ballard, a physical medicine physician, and
Dr. Varghese. On May 10, 2010, after reviewing Love’s medical history, Dr.
Ballard opined that Love’s July 19, 2002 injury was a lower back strain that was
unrelated to her current diagnosis of left L5 nerve root compressions, and that “her
present complaints are in no way related to her July 19, 2002 incident[.]” Dr.
Ballard further opined that Love’s emergency room visits were unnecessary and
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that Love’s “current medication is not necessary for the July 19, 2002 injury but
may be necessary for her unrelated present complaints.” Ballard concluded by
stating:
This patient has had a long history of problems with her
back and her present complaints are due to events and
conditions, which are the result of age and continued
heavy lifting, which is not in any fashion related to the
strain that she had in 2002.
In turn, Dr. Varghese opined that Love’s family doctor could manage
Love’s pain complaints, and that he did not believe that injective therapy was very
effective for patients with long-term back pain.
In an August 25, 2010 order, the ALJ sustained AIK’s motion to
reopen Love’s approved settlement and resolved all of the issues raised in the
medical fee dispute in AIK’s favor. The only issue that Love would later raise in
her appeal to the Workers’ Compensation Board was the reasonableness and
necessity of her continued pain management treatment and medication
management with Dr. Grentz, and its relationship to her alleged injury. In relevant
part, the portion of the ALJ’s order directed toward that issue states:
The final issue concerns continued pain management
treatment. This ALJ had reservations with Love’s
credibility as a witness, which when coupled with the
more persuasive medical evidence supports the finding
that continued pain management treatment is no longer
necessary as related to the 2002 non-surgical work injury.
Love’s testimony contained inconsistencies; the
testimony that “this girl” from whom she obtained
additional pain medication in violation of her pain
management agreement with Dr. Agatarap[4] was
4
See footnote 2.
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actually her mother reflected poorly on her credibility;
and the report from Dr. Vascello about her lack of
treatment compliance created a negative impression. The
ALJ notes that both Dr. Varghese and Dr. Grentz, Love’s
treating physicians, said that she should be able to
continue medication management with a family
physician and not a pain management specialist. But the
ALJ relies on Dr. Ballard to find that Love’s current
complaints, giving her the benefit of the doubt as to their
legitimacy, stem from L5 nerve root compression that is
not related to the July 19, 2002 work injury. This would
be consistent with the note from Dr. Grentz that Love had
done “fairly well” since 2006 until having an onset of
back pain while rising up in bed three years later in June
2009.[5]
Love did not petition the ALJ to reconsider the August 25, 2010 order.
Thereafter, Love appealed to the Board. In its subsequent order of
December 21, 2010, the Board summarized Love’s argument on appeal:
Love argues the most credible evidence of record
compels a finding that continued pain management
treatment with Dr. Grentz is reasonable and necessary for
treatment of her work injury. Accordingly, Love
maintains that the ALJ erred in finding that treatment not
compensable. Further, Love maintains the ALJ’s
decision noting that Drs. Varghese and Grentz said she
should be able to continue medication management with
a family physician and not a pain management specialist
is inaccurate since a review of the record reveals no such
statement by Dr. Grentz. Love argues even though Dr.
Grentz’s treatment records note Love should follow-up
with his clinic in 28 days or with the family physician,
Dr. Grentz did not express an opinion which of the two
choices is preferred. After noting the ALJ emphasized
5
The portion of the ALJ’s order titled “Statement of the Case” also includes a reference to
Love’s October 24, 2009 emergency room discharge summary, noting that “The ‘Discharge
Summary’ from Hazard ARH on October 24, 2009 states that Love had no medical treatment for
her back between 2002 and 2009.”
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the discharge summary from Hazard ARH on October
24, 2009, states Love had no medical treatment for her
back between 2002 and 2009, Love asserts the record
reflects that notation is erroneous. Love points out the
deposition of Dr. Varghese reveals Dr. Bean requested an
MRI on December 15, 2005, and Love treated with Dr.
Agtrap[6] sometime in 2006. Love argues the most
credible medical and lay evidence taken as a whole
compels a finding her continued pain management is
reasonable and necessary.
Nevertheless, the Board found that Love had failed to properly raise
and preserve her arguments regarding alleged inaccuracies appearing on the face of
the ALJ’s August 25, 2010 order because Love had failed to file a petition for
reconsideration. The Board further held:
In reading the ALJ’s opinion and order, we conclude the
ALJ determined Love was not entitled to continued pain
management treatment because Love’s current
complaints were not related to and, thus, not caused by
the July 19, 2002, work injury.
The Board thus framed the issue on appeal: “[G]iven the fact Love did
not file a petition for reconsideration, our sole task on appeal is to determine
whether the ALJ’s decision is supported by substantial evidence contained within
the record.”
The Board affirmed the ALJ’s decision after determining that it was
supported by substantial evidence:
The opinions expressed by Dr. Varghese, Dr. Grentz’s
medical records, and Dr. Ballard’s opinions summarized
herein constitute substantial evidence in support of the
ALJ’s determination Love’s past pain management
treatment and any continuing pain management treatment
6
See footnote 2.
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is not reasonable and necessary treatment nor causally
related to the July 19, 2002, work injury. Since the ALJ
has the authority to pick and choose, he was free to rely
primarily upon the opinions of Dr. Ballard as more
credible, and this Board is not authorized to disturb that
choice on appeal. Special Fund v. Francis, [708 S.W.2d
641 (Ky. 1986)].
This appeal followed.
II. STANDARD OF REVIEW
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). In that regard,
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. 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, Ky., 379 S.W.2d 450, 457
(1964). 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,
Ky., 708 S.W.2d 641, 643 (1986). Substantial evidence
has been defined as some evidence of substance and
relevant consequence, having the fitness to induce
conviction in the minds of reasonable people. Smyzer v.
B.F. Goodrich Chemical Co., Ky., 474 S.W.2d 367
(1971). Although a party may note evidence which
would have supported a conclusion contrary to the ALJ's
decision, such evidence is not an adequate basis for
reversal on appeal. McCloud v. Beth-Elkhorn Corp., Ky.,
514 S.W.2d 46 (1974). The crux of the inquiry on appeal
is whether the finding which was made is so
unreasonable under the evidence that it must be viewed
as erroneous as a matter of law. Special Fund v. Francis,
supra, at 643.
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Id.
III. ANALYSIS
On appeal before this Court, Love argues that no substantial evidence
of record supports the ALJ’s and Board’s conclusions that her July 19, 2002 work
injury is unrelated to her to her present complaints. To this effect, Love asserts
that “All the evidence in the record establishes that the July 19, 2002 work injury
involved the L5 disc and nerve root,” and that “The MRI’s back in 2002 clearly
document that [her] original work injury was a herniation at L4-5, left which she
has continued to suffer with over the years.” In a similar vein, Love argues that the
substantial evidence of record only demonstrates that Dr. Grentz’s continued pain
and medication management is both reasonable and necessary to treat her work
injury.
As to the issue of relatedness, while the evidence in this matter does
trace the unfortunate degeneration of Love’s lower back in the L4-L5 region,
nothing in the record beyond Love’s own testimony and representations links any
of Love’s lower back diagnoses to her alleged injury of July 19, 2002. Indeed, Dr.
Dansereau’s September 4, 2002 consultation note states that Love had been
experiencing lower back pain for several months prior to the alleged July 19, 2002
incident. Additionally, Dr. Williams’ July 23, 2002 chart note places the origin of
Love’s lower back pain as early as January, 2002. And, contrary to Love’s
testimony, which describes a specific, work-related incident causing an acute onset
of pain, Dr. Williams’ chart note describes that Love “has been having problems
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with low back and right and left leg pain that just sort of came on. She really does
not know any particular incident.”
Moreover, Dr. Desai’s report regarding Love’s August 9, 2002 MRI—
the only 2002 MRI of record—is only probative of two things: 1) Love’s lower
back suffered a “mild to moderate degree of concentric disk bulge of L4 disk
lateralizing towards the left with pressure impression on the ventral left aspect of
the thecal sac,” which is a diagnosis that is repeated throughout Love’s MRI’s in
later years; and 2) this specific condition occurred sometime before August 9,
2002.
There are no medical opinions linking Love’s alleged July 19, 2002
injury with this diagnosis, aside from Dr. Varghese, who testified that his only
understanding of Love’s injury came from his reading of the December 15, 2005
MRI report and what Love told him during her visit about the history of her injury.
And, there are no MRI reports of record predating July 19, 2002, to contrast the
August 9, 2002 MRI against. The evidence demonstrates that it was equally
possible that Love’s August 9, 2002 MRI displayed an injury predating July 19,
2002. Consequently, Dr. Ballard’s opinion that Love’s injury was at best a “lower
back strain” is not contrary to the evidence in this matter, and the ALJ was entitled
to rely upon it in determining that “Love’s current complaints, giving her the
benefit of the doubt as to their legitimacy, stem from L5 nerve root compression
that is not related to the July 19, 2002 work injury.” The only evidence to the
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contrary is Love’s testimony, and the ALJ was entitled to disregard it and
negatively assess her credibility.
Moreover, the record is also capable of supporting that Love’s
complaints of pain in 2009 were new and unrelated to the condition of her back in
2002. In spite of what the August 9, 2002 MRI revealed, substantial evidence
demonstrates, as Dr. Grentz put it, that Love was doing “fairly well until June 2009
when she ‘raised out of bed’ and noted worsening of her pain.” Consistent with
that statement, the record only reflects that Love began visiting emergency rooms
for her pain complaints on May 25, 2009; Love was able to work full time until
June or July, 2009; on June 16, 2009, an MRI revealed, for the first time, the
presence of an “annular tear”; and Dr. Radmanesh opined that “Pain related to
outer annular tear is likely.” In short, there is substantial evidence supporting that
Love’s alleged July 17, 2002 injury is unrelated to the pain and medication
management services provided by Dr. Grentz, and no other evidence of record
compels the opposite conclusion.
As such, the issue of whether Dr. Grentz’s continued care is
reasonable and necessary to treat Love’s lower back pain is moot. Nevertheless,
substantial evidence supports the conclusion that it is not reasonable or necessary.
The record contains a July 7, 2010 opinion from Dr. Varghese, which states “Pain
is a subjective feeling—and [Love’s] pain can be managed by her family doctor,”
and “In my past experience injection therapy for back pain for long term basis is
not very effective.” The only other evidence of record from any other doctor,
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relating to Love’s continued treatment with Dr. Grentz, derives from Dr. Grentz
himself and is permissive at best, i.e., in his March 11 and March 31, 2010 notes,
Dr. Grentz merely states that Love could follow up with his office or her family
physician.
IV. CONCLUSION
For these reasons, the respective decisions of the ALJ and Board are
AFFIRMED.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Monica Rice Smith
Hyden, Kentucky
Greg L. Little, Esq.
Daniel J. Urbon, Esq.
Lexington, Kentucky
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