         IMPORTANT NOTICE
    NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2001, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
                                                     RENDERED: MAY 5, 2016
                                                       NOT TO BE PUBLISHED

              ,i5uprrtur Gild of eTArriffial
                             2015-SC-000335-WC

                                                                          T....ak Grou   c•
JAMES HALCOMB AND
JOHNNIE L. TURNER                                                   APPELLANT



                   ON APPEAL FROM COURT OF APPEALS
V.                    CASE NO., 2014-CA-001791-WC
                  WORKERS' COMPENSATION NO. 03-83401



AMERICAN MINING COMPANY;
DR. JOSE ECHEVERRIA;
HONORABLE JOHN B. COLEMAN,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD                                         APPELLEES



                  MEMORANDUM OPINION OF THE COURT

                                  AFFIRMING

      Appellant, James Halcomb, appeals a Court of Appeals decision which

affirmed a medical fee dispute resolved in favor of Appellee, American Mining

Company. Halcomb argues that the Administrative Law Judge's ("AU ")

opinion, which found that American Mining is no longer liable to pay for his

narcotic medication prescription, is not supported by substantial evidence. For

the below stated reasons, we affirm the Court of Appeals.

      Halcomb suffered a work-related back, left hip, and muscular injury on

May 21, 2003. Halcomb settled his workers' compensation claim for a lump

sum, but did not waive his right to future medical expenses. In the subsequent
years following his injury, Halcomb was treated by Dr. Jose Echeverria for

chronic back pain. Dr. Echeverria prescribed Halcomb the narcotic pain

medication Lortab as part of his treatment.

         American Mining requested for Dr. Echeverria to have Halcomb submit

to random drug screens, provide the date of the most recent KASPER' review,

and undertake random pill count monitoring. Dr. Echeverria only complied

with the request to have Halcomb undergo the drug screens. Halcomb

submitted to drug screens on October 11, 2012, April 9, 2013, and October 9,

2013. Each one of the drug screens was positive for tetrahydrocannabinol

("THC"), the active component of marijuana. Despite the positive drug screens,

Dr. Echeverria continued to prescribe Lortab to Halcomb.

         On January 10, 2014, American Mining filed a motion to reopen, a Form

112 medical fee dispute, and a motion to join Dr. Echeverria as a party.

American Mining's medical fee dispute contested Halcomb's continued use of

Lortab. American Mining filed the results of the failed drug screens along with

two utilization reports to support its medical fee dispute. Dr. Ring Tsai's report

recommended that Dr. Echeverria counsel Halcomb against the continued use

of marijuana, that a repeat drug screen be administered after sixty days, and

that an opioid agreement be discussed with and signed by Halcomb agreeing

that his urine drug screens must remain negative for illegal or non-prescribed

controlled substances. Dr. Tsai stated that if Halcomb tests positive for THC or

any other illegal substance, he should be tapered off of Lortab and prescribed


1   Kentucky All Schedule Prescription Electronic Reporting


                                             2
no additional controlled substances. Dr. Tasi noted that routine long-term

opioid therapy for chronic pain is not recommended. Dr. William Nemeth's

report recommended that Halcomb be taken off Lortab. He stated that

continued use of narcotics by Halcomb was unnecessary since he was "self-

medicating with THC." In a supplemental report, Dr. Nemeth stated that

Halcomb's three positive drug screens indicated that he was actively using

marijuana because second hand exposure leads to very low doses of THC being

absorbed by the individual. Dr. Nemeth also stated that Halcomb should never

take narcotic medications again regardless of whether he tests negative for THC

in the future.

      In his defense, Halcomb filed the results of two drug screens he took on

April 9, 2014 and May 14, 2014. Both of the screens were negative for THC.

Halcomb also filed an affidavit from Dr. Echeverria. Dr. Echeverria stated that

he was aware that Halcomb tested positive for THC, but that there were ways

one can test positive even though it was not intentionally inhaled or digested.

He advised Halcomb to refrain from being around people who use marijuana in

his presence. Dr. Echeverria recommended that Halcomb continue to be

prescribed Lortab because it provides relief from his work-related injuries.

      The ALJ, after a review of the evidence, found in favor of American

Mining. He stated:

      [American Mining] argues it should be relieved of the obligation for
      payment of narcotic medications because [Halcomb] had three
      positive urine drug screens for the presence of THC. The treating
      provider has responded by explaining there are [sic] number of
      ways one can test positive even though one may not intentionally
      partake in the inhaling of absorbing of marijuana. [Dr. Echeverria]


                                         3
      indicated that he had discussed with [Halcomb] the importance of
      refraining from marijuana usage. 201 KAR 9:260 provides for the
      professional standards for prescribing and dispensing controlled
      substances. Section 5 (k) provides that drug screens shall be
      utilized during the course of long-term prescribing or dispensing of
      controlled substances. That section provides that if the drug
      screen or other information available to the physician indicate that
      the patient is noncompliant, the physicians shall: a) Do a
      controlled taper; b) Stop prescribing or dispensing the controlled
      substance immediately; or c) Refer the patient to an addiction
      specialist, mental health professional, pain management specialist,
      or drug treatment program, depending on the circumstances. In
      this particular case, [Halcomb] demonstrated non-compliance by
      testing positive for illegal drugs which were present during urine
      drug screening. I am convinced by the opinion of Dr. Nemeth the
      multiple failures on drug screening is indicative of illegal drug
      useage rather than being subjected to secondhand smoke as
      suggested and that in such instances, continued use of controlled
      narcotic medications must not continue. The only authority the
      [ALJ] has is to determine the compensability of the contested
      treatment and to order a different course of treatment would be
      much like practicing medicine, which I am certainly not qualified
      to do. However, as [American Mining] has sustained its burden of
      showing the contested treatment to be non-compensable,
      [American Mining] is relieved of any obligation for payment of
      narcotic medications pursuant to KRS 342.020.

In his order, the ALJ emphasized that American Mining remained responsible

for any reasonable and necessary medical treatment for the cure and/or relief

of Halcomb's work-related injury. No petition for reconsideration was filed.

The Workers' Compensation Board ("Board") and the Court of Appeals affirmed,

and this appeal followed.

      The Board's review in this matter was limited to determining whether the

evidence is sufficient to support the ALJ's findings, or if the evidence compels a

different result. W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687 (Ky. 1992).

Further, the function of the Court of Appeals is to "correct the Board only

where the Court perceives the Board has overlooked or misconstrued


                                         4
controlling statutes or precedent, or committed an error in assessing the

evidence so flagrant as to cause gross injustice."   Id. at 687-88. Finally, review

by this Court "is to address new or novel questions of statutory construction,

or to reconsider precedent when such appears necessary, or to review a

question of constitutional magnitude." Id. The ALJ, as fact-finder, has the sole

discretion to judge the credibility of testimony and weight of evidence.

Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985).

      In a post-award medical fee dispute, the burden of proof to determine if

the medical treatment is unreasonable or unnecessary is with the employer.

See KRS 342.020; Mitee Enterprises v. Yates, 865 S.W.2d 654 (Ky. 1993); R.J.

Corman Railroad Construction v. Haddix, 864 S.W.2d 915, 918 (Ky. 1993);

National Pizza Company v. Curry, 802 S.W.2d 949 (Ky. App. 1991). Since

American Mining had the burden of proof on the issue of whether Halcomb's

Lortab prescription was unreasonable and unnecessary and was successful

before the ALJ, the sole issue on appeal then is whether substantial evidence

supports the ALJ's conclusion. Special Fund v. Francis, 708 S.W.2d 641 (Ky.

1986). Substantial evidence is 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., 474 S.W.2d 367, 369

(Ky. 1971).

      Halcomb argues that the ALJ's opinion, which resolved the medical fee

dispute in American Mining's favor, is not supported by substantial evidence.

Halcomb argues that Dr. Nemeth's opinion was flawed because it presumed



                                         5
that he was currently self-medicating with THC. Halcomb contends that the

two clean drug screens he took on April 9, 2014 and May 14, 2014 show that

he is not self-medicating with THC and contends that the prior failed drug

screens were caused by secondhand marijuana smoke. Halcomb also notes

that Dr. Echeverria believes that he should continue to use Lortab for

treatment of his chronic back pain. We disagree.

      The ALJ's conclusion that Halcomb was using marijuana is supported by

the three failed drug screens and Dr. Nemeth's opinion. Dr. Nemeth stated

that the failed drug screens indicated Halcomb's active use of marijuana

instead of secondhand exposure. Therefore, Dr. Nemeth stated the presence of

THC in Halcomb's system warranted the immediate discontinuation of the

Lortab prescription. He went on to say in his supplemental report that even if

Halcomb never tests positive for THC again he should not resume using

narcotic pain medication. The ALJ was within his discretion to find Dr.

Nemeth's opinion persuasive.

      Additionally, 201 KAR 9:260 §5(4)(k) supports the ALJ's decision. It

states:

      1. During the course of long-term prescribing or dispensing of a
      controlled substance, the physician shall utilize drug screens,
      appropriate to the controlled substance and the patient's
      condition, in a random and unannounced manner at appropriate
      times. If the drug screen or other information available to the
      physician indicates that the patient is noncompliant, the physician
      shall:
             a. Do a controlled taper;
             b. Stop prescribing or dispensing the controlled
             substance immediately; or
             c. Refer the patient to an addiction specialist, mental
             health professional, pain management specialist, or


                                        6
            drug treatment program, depending upon the
            circumstances.

Thus, because Halcomb tested positive for THC in three different drug screens,

according to the KAR, Halcomb should no longer be prescribed controlled

substances such as Lortab.. The ALJ's opinion holding that American Mining is

no longer liable to pay for Halcomb's Lortab is supported by substantial

evidence, and shall not be disturbed.

      For the above stated reasons, we affirm the decision of the Court of

Appeals.

      All sitting. All concur.




COUNSEL FOR APPELLANT,

JAMES HALCOMB AND
JOHNNIE L. TURNER:

Johnnie L. Turner



COUNSEL FOR APPELLEE,
AMERICAN MINING COMPANY:

Scott Mitchell Burns Brown



COUNSEL FOR APPELLEE,
DR. JOSE ECHEVERRIA:

Jose Echeverria, pro se


                                        7
