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Conley v. Super Services, LLC

Court of Appeals of Kentucky

September 7, 2018

JASON CONLEY APPELLANT
v.
SUPER SERVICES, LLC; HON. MONICA RICE-SMITH, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES

          PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-15-85739

          BRIEF FOR APPELLANT: Thomas W. Moak Prestonsburg, Kentucky

          BRIEF FOR APPELLEES: Brian David Wimsatt Louisville, Kentucky

          BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND JONES, JUDGES.

          OPINION

          COMBS, JUDGE:

         Appellant, Jason Conley, appeals from an Opinion of the Workers' Compensation Board affirming the denial of proposed caudal epidural steroid and sacroiliac injections. After our review, we affirm in part, vacate in part, and remand.

         We limit our discussion of the record to the issue before us. Conley was employed as a truck driver by the Appellee, Super Services, LLC (Defendant/Employer). On April 21, 2014, he was injured in a work-related motor vehicle accident. On November 17, 2015, he filed a Form 101/Application for Resolution of Injury Claim.

         Following the taking of proof and a formal hearing, the Administrative Law Judge (ALJ), Jeanie Owen Miller, determined that Conley's cervical and lumbar injuries, neurogenic bladder, and psychological conditions were work-related and that proposed back surgery was reasonable, necessary and related to the work injury. By Interlocutory Opinion, Award, and Order, rendered on June 10, 2016, the ALJ awarded temporary total disability (TTD) benefits and reasonable and necessary medical expenses. The ALJ placed the claim in abeyance until Conley reached maximum medical improvement (MMI) after medical treatment. On August 3, 2016, Conley underwent an L4-5 discectomy. He continued to have pain following surgery and treated with Dr. Gutti for pain management.

         On January 19, 2017, Super Services filed a Form 112/Medical Fee Dispute challenging the reasonableness of a spinal cord stimulator requested by Dr. Deer based upon the Utilization Review (UR) of Dr. Trotter.

         By Order of March 29, 2017, the ALJ removed the case from abeyance and scheduled proof-time.

         On May 2, 2017, Super Services filed a Form 112/Medical Fee Dispute challenging the reasonableness and necessity of a repeat sacroiliac (SI) joint injection requested by Dr. Gutti based upon Dr. Braun's UR. According to Dr. Braun, diagnostic SI injections are no longer supported by relevant guidelines because no further treatment can be recommended based upon any diagnostic information. Furthermore, therapeutic SI injections are not recommended for noninflammatory pathology based on insufficient evidence. They are recommended on a case-by-case basis for inflammatory sacroiliitis, a condition generally considered rheumatologic in origin. The report further reflects that Dr. Braun "Spoke with Dr. Gutti explained the current status of guidelines. Provider accepted the denial."

         On June 29, 2017, Super Services filed a Form 112/Medical Fee Dispute challenging the reasonableness and necessity of a repeat caudal epidural steroid injection and referral to a neurosurgeon -- both requested by Dr. Gutti. Super Services relied upon the UR report of Dr. Lewis, which provides in relevant part:

Kentucky guidelines do not specifically address the requested repeat caudal epidural steroid injection. According to the Official Disability Guidelines (ODG)(Online Version) Low Back Chapter (updated 05/12/17), Epidural steroid injections (ESIs) therapeutic, "Radiculopathy (due to herniated nucleus pulposus, but not spinal stenosis) must be documented. Objective findings on examination need to be present. Radiculopathy must be corroborated by imaging studies and/or electrodiagnostic testing … [sic] Repeat injections should be based on continued objective documented pain relief, decreased need for pain medications, and functional response."
In this case, provided documents highlight the claimant recently underwent a caudal epidural steroid injection in March. Although the clinical note from 04/07/2017 documents greater than 50% relief of pain from this injection, there is no documentation of functional improvement or an associated reduction of medication use for six (6) to (8) weeks. Further, provided documentation does not include the actual report from the recent MRI of the lumbar spine, which is referenced. Due to this lack of ...

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