DocketNumber: No. 16–AA–0846
Citation Numbers: 185 A.3d 37
Judges: Blackburne, Rigsby
Filed Date: 5/11/2018
Status: Precedential
Modified Date: 6/24/2022
Petitioner Adonis Holland seeks review of a Compensation Review Board ("CRB") Decision and Order affirming the Administrative Law Judge's ("ALJ") denial of Petitioner's continued prescription for oxycodone based on the finding that the medication was not "reasonable and necessary." See Reynolds v. District of Columbia Dep't of Emp't Servs. ,
I.
On September 8, 1999, Petitioner fell twenty-five feet from a ladder, sustaining back and leg injuries while employed by Oncore Construction Company ("Employer"). From September 20, 1999 to late 2011, Petitioner received medical treatment from Dr. Hampton Jackson, an orthopedic doctor, who opined that Petitioner suffered from lumbar strain, chemical radiculitis,
On January 5, 2011, Dr. Jackson examined Petitioner and opined that he could no longer participate in work activity, and that Petitioner's condition had worsened over the years. Dr. Jackson prescribed Petitioner oxycodone in 2011 instead of the Endocet he had previously prescribed, and also administered intermittent lumbar epidural steroid injections.
In a July 25, 2011 IME report, Dr. Collins opined that Petitioner continued to suffer from chronic lumbar strain with a herniated disk and some intermittent radiculopathy, which was confirmed by electromyography and nerve conduction tests. Dr. Collins also opined that Petitioner had a limited response to the epidural injections he had previously received from Dr. Jackson, and that Petitioner should be weaned off the pain medication dosage he was taking for his back pain.
In September 2012, after Dr. Jackson passed away, Petitioner continued receiving *40treatment, approximately once per month, from Dr. Richard Ashby, a family practitioner who had been on a list of doctors provided by Dr. Jackson's office.
Petitioner subsequently filed a claim for compensation pursuant to
The UR report
The UR report further noted that opioid use "should be monitored closely, and restricted to patients not highly vulnerable to drug dependence, abuse, or addiction." The UR report stated that "[t]he absence of a contract for controlled substances for nearly two years following the initiation of chronic narcotic therapy, along with monitoring of urine for potential abuse, is again substandard care and not compliant with guidelines for chronic pain management."
At a hearing on December 1, 2015, ALJ Mark W. Bertram questioned the Petitioner about his treatment with Dr. Ashby. The Petitioner testified that when he began treatment with Dr. Ashby, Dr. Ashby performed a physical examination and reviewed Petitioner's prior medical records.
*41Dr. Ashby proposed options to Petitioner, such as alternative treatments and weaning off the oxycodone ; Petitioner testified, however, that he had previously tried physical therapy, cortisone shots, and epidurals under Dr. Jackson's supervision, but that none of these options offered him relief. Petitioner further testified that he declined psychiatric counseling and back surgery.
Dr. Ashby also recommended that Petitioner should "stay active" and "lose weight." Petitioner testified that he walked as much as he could in an attempt to keep his weight under control, but that he often stayed in bed because the pain without oxycodone was unbearable.
At the end of the hearing, ALJ Bertram stated that he found the Petitioner to be "very credible" and stated his belief that the petitioner testified truthfully. ALJ Bertram, after finding Petitioner to be lucid, also stated that, "by viewing [Petitioner], I don't think there's a problem with the opioid part, so I don't want there to be one."
On January 27, 2016, ALJ Bertram issued a Compensation Order concluding that Petitioner's continued use of oxycodone was not reasonable or necessary. ALJ Bertram explained that his decision was based on the entire record being "considered and weighed" and stated that "[t]he recommendations and conclusions of the UR are accepted." The Compensation Order concluded that, while Dr. Ashby consistently diagnosed Petitioner with lumbar disc disorder, the medical records did not elaborate on the back condition or the specific cause of pain. Further, while Petitioner testified that he took oxycodone as prescribed, his treatment records did not reflect any additional treatment orders or recommendations from Dr. Ashby, other than staying active and losing weight. Moreover, ALJ Bertram found that the UR report warned that prescribing opioids on a regular basis is considered a "substandard approach" to pain management because narcotics are addictive and may result in undesirable side effects.
Petitioner appealed the Compensation Order to the CRB, which, on August 2, 2016, issued an order affirming the Compensation Order, stating that the ALJ made its determination based on a consideration of all the evidence, including Dr. Friedman's UR report, Dr. Ashby's records, *42and Petitioner's testimony. The CRB specifically noted that the ALJ considered Petitioner's testimony that he had tried alternate therapies in addition to the oxycodone.
II.
"Our principal function in reviewing administrative action is to assure that the agency has given full and reasoned consideration to all material facts and issues." Georgetown Univ. Hosp. v. District of Columbia Dep't of Emp't Servs. ,
III.
The CRB explained that its review is limited to a determination of whether the ALJ's decision was supported by substantial evidence. See Marriott Int'l v. District of Columbia Dep't of Emp't Servs. ,
The CRB erred in determining that the ALJ's findings were supported by substantial evidence, and that his conclusions of law flowed rationally from his findings of fact. Critically, the Compensation Order failed to (1) account for evidence that alternative *43therapies had been unsuccessful; and (2) consider the use of opioids relative to the Petitioner's circumstances. Both of these issues are material to the determination of whether the oxycodone use was reasonable and necessary.
The ALJ stated that Petitioner's "medical records are void of any elaborations regarding [Petitioner's] back condition and the specific causes" and noted that, although Petitioner testified that he had tried other therapies, "Dr. Ashby's records are void of any references to alternative treatments that were considered or ordered." The ALJ found this problematic given that the "UR also points out that the use of opioids should be used as part of a multi-modal therapy."
Although Dr. Ashby's records did not indicate other treatments, the Petitioner testified that he tried physical therapy, cortisone shots, and epidurals under Dr. Jackson's supervision, yet none of these offered him relief. At the hearing, ALJ Bertram stated that he found Petitioner's testimony to be credible; he also noted that the Petitioner had weighed the pros and cons of back surgery, and determined that it was not right for him. Petitioner's credibility was further bolstered by the prior Compensation Order which was entered into evidence and provided details regarding Petitioner's prior attempts at alternative treatments. Moreover, during the hearing, the Employer stated that they had Petitioner "seen by IME physicians before in the past" and that "[t]hey typically said he'd reached MMI [maximum medical improvement], that there wasn't any treatment that he needed." The Employer continued: "So I guess that's our opinion as far as what other medical treatment might help him. Dr. Ashby's [sic] at no point said anything different, other than just keep taking meds."
This evidence all contravenes the UR report's recommendation suggesting that the use of alternative treatments was reasonable and necessary, as this evidence suggests that alternatives were considered and did not work, a conclusion that the Employer orally acknowledged at the hearing. The CRB, in reviewing ALJ Bertram's decision, summarily opined that "the record supports the ALJ's determination that the Oxycodone use alone, without any other treatment interventions, is condemned by the UR report as an unreasonable approach to managing chronic low back pain" and that the Compensation Order "reflect[ed] a full consideration of the UR and Dr. Ashby's records." In Straughn v. District of Columbia Department of Employment Services , we held that an ALJ was required to address the Petitioner's testimony that, if credited, "could tend to undermine a conclusion that [Petitioner's] symptoms were attributable to [a] preexisting [condition] ...."
Similarly, the ALJ accepted the UR report's generalized conclusion that the use of "controlled substances on a regular basis for non-cancer pain is considered to be a substandard approach to the management of chronic pain syndromes" because *44"narcotics are addictive, and often ineffective, and may lead to a variety of undesirable outcomes and side effects when prescribed on a regular basis for non-cancer pain."
Accordingly, we reverse and remand the case for re-examination of the record and findings and conclusions not inconsistent with this opinion.
So ordered.
Chemical radiculitis is an inflammatory condition affecting the spinal nerve root causing dissemination of disk fluid along the nerve sheath.
Petitioner filed a claim for workers' compensation benefits covering reimbursement for medical treatment and out-of-pocket mileage expenses incurred for transportation to and from medical appointments from June 26, 2000 through April 19, 2011. For this hearing, Petitioner underwent a Peer/Medical Record Review conducted by Dr. Robert Holladay, a Board Certified Orthopedic Surgeon, on January 14, 2013. ALJ Karen R. Calmeise issued a Compensation Order on October 21, 2013 finding Petitioner's claim to be compensable under the D.C. Workers' Compensation Act. In the Order, she cited to the Peer Review, which stated that oxycodone was recommended "if it improves function" and "if it was provided by one practitioner." ALJ Calmeise then concluded that "Oxycodone was appropriate because the medication was prescribed by Dr. Jackson, the primary treating physician and [Petitioner] testified that the Oxycodone helped relieve his pain symptoms better than the previously prescribed Endocet."
A UR report evaluates the "necessity, character, and sufficiency of both the level and quality of medically related services provided an injured employee based upon medically related standards."
In drafting the UR report, Dr. Friedman relied on Dr. Ashby's notes from September 5, 2012 to October 9, 2014, yet stated that the UR report addressed the question of whether Dr. Ashby's treatment from August 3, 2012 to the present date of March 19, 2015 was necessary and appropriate.
The UR report incorrectly stated that Petitioner was not undergoing drug tests. Dr. Ashby's records demonstrate that urine tests were conducted on a regular basis, beginning at the very latest, on December 5, 2012, and that there was a protocol in place to safeguard against substance abuse prior to signing a controlled substances contract.
The UR report also stated that "[l]ong term opiates (narcotics) are recommended as a first-line treatment for chronic non-malignant pain[,]" which appears to be missing the word "not," given that this conclusion as written contravenes the text that follows.
Dr. Ashby referenced "psychiatric symptoms of anxiety and depression" but did not document how these symptoms contributed to Petitioner's pain and did not suggest treatment for these issues. The UR report states that psychological causes need to be considered when prescribing opioids such as oxycodone.
Petitioner explained that he found spiritual guidance of greater benefit than counseling. He stated that he declined surgery because of the medical expenses he would incur, and because of concerns about the possibility that his condition would not improve with surgery. The ALJ stated that it was "admirable that [Petitioner] weighed the pros and cons of surgery, cause surgery's [sic] not for everybody."
Dr. Ashby's act of prescribing the oxycodone reflects his belief that the oxycodone was reasonable and necessary. See Reynolds,
The CRB discussed Petitioner's reference to a prior Compensation Order (dated October 17, 2015), which authorized his oxycodone use, and concluded that the reference to the prior Order indicated that Petitioner was seeking a modification of the present Compensation Order. The CRB concluded that since a modification of a prior Compensation Order is governed by procedures in
ALJ Bertram stated during the February 1, 2015 hearing that he "thought the Utilization report laid out some very compelling stats and statistics about the long-term use of narcotics." He then stated, "That's my concern in this case."
Some of Dr. Ashby's treatment records that postdate the treatment records discussed in the UR report suggest that the Petitioner was responding favorably to the oxycodone. A March 10, 2015 note stated that "medication makes pain better" and that "pain w/ meds is 6/10." A January 9, 2015 note stated that "chronic pain in lower back is responding to analgesics." A December 11, 2014 note stated "managing pain and functioning at current dosing." Moreover, Petitioner testified that in the short gap between seeing Dr. Jackson and Dr. Ashby, he was in extreme pain and suffering because he was not taking his medication.
Petitioner's credible testimony, the urine tests, and ALJ Bertram's statement that he didn't "think there's a problem with the opioid part" all supported a finding that Petitioner was not abusing the oxycodone.