RENDERED: SEPTEMBER 18, 2025 TO BE PUBLISHED
Supreme Court of Kentucky 2024-SC-0504-WC
JUDY HOWELL APPELLANT/CROSS-APPELLEE
ON APPEAL FROM COURT OF APPEALS V. NO. 2024-CA-0122 WORKERS' COMPENSATION NO. WC-93-07353
FLOYD COUNTY BOARD OF APPELLEE/CROSS-APPELLANT EDUCATION
AND
DR. CASSANDRA GARRETT; HON. APPELLEES CHRIS DAVIS, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD
2025-SC-0022-WC
FLOYD COUNTY BOARD OF CROSS-APPELLANT/APPELLEE EDUCATION
ON APPEAL FROM COURT OF APPEALS V. NO. 2024-CA-0122 WORKERS' COMPENSATION NO. WC-93-07353
JUDY HOWELL CROSS-APPELLEE/APPELLANT
DR. CASSANDRA GARRETT; HON. APPELLEES CHRIS DAVIS, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD OPINION OF THE COURT BY JUSTICE BISIG
AFFIRMING
This workers’ compensation appeal involves Kentucky’s adoption and
application of the Official Disability Guidelines (ODG), a primary standard of
reference for healthcare providers in determining which treatments are
medically necessary for workers’ compensation injuries. Judy Howell was
injured while working for the Floyd County Board of Education in 1993, and
ultimately awarded workers’ compensation benefits, including future medical
benefits. After nearly thirty years of using Hydrocodone, as prescribed by her
treating physician, Floyd County initiated a medical fee dispute to contest the
compensability of the Hydrocodone. Pursuant to the ODG, Hydrocodone is not
recommended for long-term use. Despite Howell’s presentation of evidence to
support her continued use of Hydrocodone, an ALJ determined the prescription
was non-compensable. The Board agreed, as did the Court of Appeals, albeit
for different reasons once it assessed Howell’s constitutional claims. After
review, we uphold the ALJ’s decision deeming that the Hydrocodone is non-
compensable for treatment of Howell’s work-related injury.
FACTS AND PROCEDURAL HISTORY
Judy Howell sustained a work-related low back injury on January 18,
1993, while employed by the Floyd County Board of Education. On July 27,
1995, an Administrative Law Judge (ALJ) awarded benefits for a 50%
permanent partial disability and future medical expenses related to the injury.
In 2022, the Floyd County Board of Education sought to reopen the claim and
2 submitted a medical fee dispute regarding the compensability of prescriptions
for Hydrocodone and Gabapentin. 1
Howell provided testimony during a hearing on April 25, 2023, and
confirmed she was receiving medical treatment from Dr. Cassandra Garrett.
Howell sees Dr. Garrett every three months and is prescribed Hydrocodone. In
addition to her back pain diagnosis, Howell has bilateral sciatica and
polyneuropathy and neurologic complications from Type II diabetes. In her
treatment plan, Dr. Garrett noted that Howell had been on the pain medication
since 1993, and that she projected Howell would need to remain on the
medication for life.
Dr. Zaid Fadul, a family medicine and addiction specialist, conducted
utilization review on behalf of Floyd County and submitted a medical report. In
his report, he applied the Official Disability Guidelines for Treatment of
Workers’ Compensation (ODG) and concluded that, in Howell’s case,
Hydrocodone is not medically reasonable or necessary. The ODG is a set of
evidence-based treatment and disability guidelines Kentucky has recently
adopted for use in the treatment of work-related injuries and occupational
diseases in workers’ compensation claims. The ODG, developed by MCG
Health, were adopted by the Commissioner of the Department of Workers’
Compensation pursuant to authority expressly granted by the Legislature in
Kentucky Revised Statute (KRS) 342.035. Dr. Fadul explained that, according
1 The medical fee dispute also contested the compensability for another
prescription for Duloxetine, but the testimony quicky revealed that the prescription was discontinued and thus no longer a cause for dispute. 3 to the ODG, short-acting opioids or narcotics may be considered for the
treatment of acute or chronic pain when first-line medications have been
attempted without success. However, Hydrocodone is not recommended for
long-term use due to the lack of evidence supporting its efficacy in long-term
pain relief and its associated risks, including dependency and abuse.
Additionally, Dr. Fadul noted that Dr. Garrett’s records did not clearly
demonstrate significant pain relief or functional improvement from the ongoing
use of Hydrocodone, and that Howell continued to report high levels of pain
despite taking the prescription. As a result, Dr. Fadul concluded that
Hydrocodone did not meet ODG recommendations and recommended against
continued use.
On the employer’s behalf, Dr. Rafid Kakel conducted a comprehensive
medical records review. In his report, he opined that the continued use of
Hydrocodone is not appropriate for Howell’s condition. Dr. Kakel explained
that there is a lack of evidence demonstrating its long-term efficacy and
significant risks associated with long-term use, including physical dependence,
tolerance, and addiction. Further, medical literature indicates that opioids
may contribute to cardiac-related fatalities and significantly increase the
overall risk of mortality.
On June 17, 2023, an ALJ determined that Dr. Garrett’s prescription for
Gabapentin is compensable, but her Hydrocodone prescription was not
compensable. The ALJ determined that the side effects of long-term use of
Hydrocodone and the failure to consider alternative pain control methods
4 rendered continuing the prescription to be unreasonable. However, the ALJ
did conclude that Howell would be entitled to a reasonable weaning period if
she were going to stop taking the Hydrocodone. Howell filed a petition for
reconsideration, specifically requesting findings as to what sections of the ODG
apply to her claim, and whether the ALJ considered exceptions to the ODG
prior to making his determination. Howell also requested findings as to
whether this long-standing treatment would have been considered reasonable
and necessary treatment, absent the application of the ODG. 2 The ALJ
reissued an Order on July 10, 2023 and reaffirmed his reasoning to deny
compensability of the Hydrocodone prescription.
The Board affirmed the ALJ, concluding that Dr. Fadul and Dr. Kakel’s
opinions constitute substantial evidence. The Board acknowledged that
perhaps another ALJ may have ruled in a different manner based on these
facts, but nevertheless the ALJ is the trier of fact who must determine whether
a claimant has sufficiently rebutted the ODG’s determination that a treatment
option is non-compensable.
The Court of Appeals affirmed the Board and the ALJ. Notably, Howell’s
arguments included claims regarding the constitutionality of the application of
the ODG to workers’ compensation claims, contesting whether its application
complies with the mandates of due process and equal protection. Neither the
2 Floyd County also filed a petition for reconsideration, rearguing the merits of
the claim that Gabapentin is not reasonable and necessary treatment. The petition also argued that the ODG did not recommend Gabapentin because there is no neuropathic condition documented in Howell’s medical records. 5 Board nor the ALJ are empowered to decide constitutional claims. Blue
Diamond Coal Co. v. Cornett, 300 Ky. 647, 189 S.W.2d 963 (1945). Therefore,
the Court of Appeals was the first tribunal to address these claims.
The appellate court explained that adoption of the ODG effectively altered
the burden of proof by creating a new, mandatory presumption of non-
compensability regarding certain prescriptions, whereas, before the
implementation of the ODG, Howell’s doctor was free to exercise medical
judgment as to which prescriptions were needed so long as those prescriptions
were medically “reasonable and necessary.” According to the Court of Appeals,
prior to adoption of the ODG, Floyd County would have needed to disprove the
reasonableness and necessity of the prescription whereas now, it is presumed
unreasonable and Howell must rebut it by proving its reasonableness and
necessity. Because this type of burden shifting constitutes a substantive
change, the statute allowing the Commissioner to adopt the ODG cannot apply
retroactively to Howell’s claim.
However, despite the court’s reasoning that applying the ODG’s
presumption to Howell’s claim effectively “reduced” the amount awarded to her
in 1995, i.e., the award entitling her to future medical expenses related to the
work injury, and therefore infringing upon her vested right to continued
medical treatment, the Court of Appeals concluded there was no error.
Irrespective of the presumption imposed by the ODG, the ALJ ultimately
weighed substantial evidence presented by both sides of this medical fee
6 dispute and Howell’s evidence came up short. As such, the Court of Appeals
affirmed the Board and the ALJ.
Howell now appeals to this Court.
ANALYSIS
“The party responsible for paying post-award medical expenses has the
burden of contesting a particular expense by filing a timely motion to reopen
and proving it to be non-compensable.” Crawford & Co. v. Wright, 284 S.W.3d
136, 140 (Ky. 2009) (citing Mitee Enterprises v. Yates, 865 S.W.2d 654 (Ky.
1993)). Here, Floyd County initiated this medical fee dispute contesting the
compensability of Hydrocodone, and therefore Floyd County bears the burden
of proof. As explained in Crawford, the party seeking reopening bears the
burden of proving the treatment is unreasonable or unnecessary for the
injury’s effects. 284 S.W.3d at 140-41. As discussed in further detail below,
Howell is then tasked with rebutting Floyd County’s evidence.
Where the party with the burden of proof was successful before the ALJ,
the issue on appeal is whether substantial evidence supported the conclusion.
Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999). Because Floyd County
was successful in proving the non-compensability of Hydrocodone, we must
determine whether substantial evidence supports the ALJ’s decision. Wolf
Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. 1984). Substantial evidence is
evidence of “substance and relevant consequence” having fitness to induce
conviction in the minds of reasonable people. Miller v. Tema Isenmann, Inc.,
542 S.W.3d 265, 270 (Ky. 2018) (quoting Smyzer v. B.F. Goodrich Chemical Co.,
7 474 S.W.2d 367, 369 (Ky. 1971)). Therefore, we must determine whether
substantial evidence supported the ALJ’s determination that Howell’s
Hydrocodone prescription is non-compensable.
I. The Official Disability Guidelines.
This appeal centers around Kentucky’s use of the ODG in assessing the
compensability of an injured workers’ treatment and prescription medication.
KRS 342.035 directs the Commissioner of the Department of Workers’ Claims
to develop or adopt medical treatment guidelines for use in the treatment of
work injuries. On October 22, 2018, the Department announced the selection
of the Official Disability Guidelines (ODG) as its treatment guidelines. 3 The
purpose of adopting the ODG is to facilitate safe and appropriate treatment of
work-related injuries and occupational diseases. As part of this statutory
mandate, the Commissioner also promulgated regulations to implement the
use of the ODG. 803 KAR 25:260.
803 KAR 25:260 §1(16) states that “[t]reatment guidelines” are the
treatment guidelines developed or adopted by the Commissioner pursuant to
KRS 342.035(8)(a), i.e. the ODG. “The treatment guidelines apply to all
treatment administered on and after September 1, 2020.” 803 KAR 25:260 §5.
The regulation explains that
[t]he employer shall not be responsible for medical treatment designated as “Not Recommended” under the guidelines or not addressed in the treatment guidelines unless it was (a) Provided in a medical emergency;
3 According to Floyd County, many states have adopted the ODG, including
Tennessee, Indiana and Ohio. The ODG is the most widely used guideline in state workers’ compensation systems. 8 (b) Authorized by the medical payment obligor; or (c) Approved through the dispute resolution process by the administrative law judge.
In this case, according to two medical professionals who utilized the ODG,
Hydrocodone is “Not Recommended” to treat Howell’s injury. Subsection (2)
explains that medical providers contesting treatment deemed “Not
Recommended” by the guidelines
shall articulate in writing sound medical reasoning for the proposed treatment, which may include: (a) Documentation that reasonable treatment options allowable in the guidelines have been adequately trialed and failed; (b) The clinical rationale that justifies the proposed treatment plan, including criteria that will constitute a clinically meaningful benefit; or (c) Any other circumstances that reasonably preclude recommended or approved treatment options.
II. The ODG permissibly creates a rebuttable presumption as to non- compensability of certain prescription medications.
In essence, the ODG creates a rebuttable presumption as to whether a
treatment is recommended, conditionally recommended or not recommended
for the treatment of an injured workers’ condition. The Board explained that it
frequently treats the recommendations in the ODG as comparable to a
university evaluator’s opinion, and cited numerous Board decisions treating
the ODG as such. A university evaluator’s opinions are governed by KRS
342.315. That statute requires a university evaluator’s examination in all
occupational disease claims. The opinions of university evaluators are afforded
presumptive weight, KRS 342.315(2), and the burden to overcome the findings
and opinions of a university evaluator falls upon the opponent of such
9 evidence. Magic Coal Co. v. Fox, 19 S.W.3d 88, 94 (Ky. 2000). “[T]he opponent
of a university evaluator's report may introduce countervailing evidence which
will overcome the report.” Id.
KRS 342.315 creates a rebuttable presumption in favor of the university
evaluator’s opinion but does not prohibit the fact-finder from rejecting a finding
or opinion of a university evaluator. It simply requires the ALJ to specifically
state reasons for doing so. KRS 342.315(2).
To the extent that the university evaluator's testimony favors a particular party, it shifts to the opponent the burden of going forward with evidence which rebuts the testimony. If the opponent fails to do so, the party whom the testimony favors is entitled to prevail by operation of the presumption. Stated otherwise, the clinical findings and opinions of the university evaluator constitute substantial evidence with regard to medical questions which, if uncontradicted, may not be disregarded by the fact-finder.
Magic Coal Co., 19 S.W.3d at 96.
There are parallels between the use of a university evaluator’s opinion
and a designation from the ODG that a prescription or treatment is not
recommended and therefore non-compensable. Like the presumptive weight
afforded to a university evaluator’s opinion, a “not recommended” designation
in the ODG creates a presumption that the prescription or treatment is non-
compensable. But an ALJ always has the discretion to reject a university
evaluator’s opinion where it is determined the presumption has been overcome
by some other evidence, and the reasons for doing so are expressly stated in
the ALJ’s decision. Bullock v. Goodwill Coal Co., 214 S.W.3d 890, 890-91 (Ky.
2007). This same rationale is true regarding the presumption created by the
10 ODG because the regulations require that when overriding the ODG, a sound
medical opinion supporting such deviation is required. 803 KAR 25:260 §3.
Importantly, this Court has explained that KRS 342.315(2) is properly
governed by Kentucky Rule of Evidence 301. As applied to this case, that
means that while the ODG’s presumption that Howell’s Hydrocodone is non-
compensable imposes a burden on Howell to present evidence in rebuttal, it
“does not shift to [Howell] the burden of proof in the sense of the risk of
nonpersuasion, which remains throughout the trial upon the party on whom it
was originally cast.” Magic Coal Co., 19 S.W.3d at 95 (quoting KRE 301).
Therefore, by applying this reasoning to Howell’s case, the ODG creates a
presumption that may be overcome by the presentation of contrary evidence
supporting the long-term use of Hydrocodone. The administrative regulations
give explicit instructions as to how a party can overcome the presumption—
803 KAR 25:260 §3 states that “[m]edical providers proposing treatment
designated as “Not Recommended” under the guidelines . . . shall articulate in
writing sound medical reasoning for the proposed treatment . . . .” This sound
medical reasoning may include an explanation that reasonable treatment
options have been utilized but failed, a clinical rationale justifying the proposed
treatment plan, or any other circumstance precluding recommended or
approved treatment options. Floyd County submitted medical evidence, in the
form of the opinions of two medical professionals, who reviewed Howell’s
history and the evidence in her workers’ compensation claim. These doctors
11 applied the ODG to Howell’s claim to reach their conclusions that the
Dr. Fadul opined Hydrocodone is treatment for acute pain and the
evidence-based guidelines do not recommend it for long-term use. He noted
that, despite the Hydrocodone use, Howell still reported high levels of pain. Dr.
Kakel stated his opinion that Hydrocodone is not reasonable or necessary
treatment. He emphasized that the ODG do not recommend Hydrocodone as a
first-line option, noting evidence shows inconclusive benefit, lack of benefit, or
potential harm. In addition, opioids are commonly used for a short-term of less
than six weeks. According to the ODG, there are alternatives to opioids that
can be used.
Howell presented the medical opinion of Dr. Garrett, who explained her
reasoning for prescribing Hydrocodone as well as the long-standing use of the
medication. Dr. Garrett also submitted a treatment plan and a statement of
exceptions to the ODG Guidelines. Dr. Garrett emphasized Howell’s age and
the fact that she has been on pain medication for thirty years. Although a party
may note evidence that would have supported a different outcome than that
reached by the ALJ, such proof is not an adequate basis to reverse on appeal.
McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46, 47 (Ky. 1974). Of course, we
must note that Howell is 79 years old and has used the Hydrocodone
prescription for approximately thirty years.
In sum, there are three medical reports in the record addressing whether
the Hydrocodone is compensable – one report supporting compensability (Dr.
12 Garrett) and two reports supporting non-compensability (Drs. Fadul and
Kakel). ALJs are consistently required to weigh conflicting medical evidence
when adjudicating workers’ compensation claims. KRS 342.285 grants an ALJ,
as fact-finder, the sole discretion to determine the quality, character, and
substance of evidence. Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993).
Here, the ALJ deemed the Hydrocodone non-compensable. The Board and
Court of Appeals upheld the ALJ’s decision. An ALJ’s findings of fact are
afforded considerable deference and, on appellate review, “will not be set aside
unless the evidence compels a contrary finding.” Plumley v. Kroger, Inc., 557
S.W.3d 905, 909 (Ky. 2018) (quoting U.S. Bank Home Mortgage v. Schrecker,
455 S.W.3d 382, 384 (Ky. 2014)).
Here, Drs. Fadul and Kakel’s opinions constitute substantial evidence.
While there is conflicting medical evidence in the record, Howell must
demonstrate that the evidence was so overwhelming as to compel a favorable
finding. Kroger v. Ligon, 338 S.W.3d 269, 273 (Ky. 2011). She failed to do so.
Therefore, the ALJ did not err in deeming the Hydrocodone non-compensable.
III. KRS 342.035 is applicable to the reopening claim.
Howell argues that the ODG does not apply to her claim because she was
injured before the ODG was adopted, and the law in effect on the date of injury
controls the outcome of the claim. Maggard v. Int’l Harvester Co., 508 S.W.2d
777, 783 (Ky. 1974). She also asserts that the required use of the ODG takes
away her right to receive treatment that she had been receiving for thirty years
that provided relief from the effects of her work injury.
13 Section 20(2) of 2018 Kentucky Acts Chapter 40, the Act now codified in
KRS 342.035, which directs the Commissioner to adopt treatment guidelines,
provides that KRS 342.035 is
remedial and shall apply to all claims irrespective of the date of injury or last exposure, provided that, as applied to any fully and finally adjudicated claim, the amount of indemnity ordered or awarded shall not be reduced and the duration of medical benefits shall not be limited in any way.
“[W]hen the General Assembly clearly states legislation is to have retroactive
effect or otherwise prescribes its temporal scope or reach, we give effect to the
intent of the General Assembly.” Martin v. Warrior Coal LLC, 617 S.W.3d 391,
396 (Ky. 2021). Thus, based on the Legislature’s express declaration, the ODG
applies to all injuries, not just those that occurred after September 1, 2020, the
date of the ODG’s regulatory adoption and implementation.
Howell’s argument is essentially that she either had a vested right in
receiving certain treatment, i.e., Hydrocodone, or that she had a vested right to
expect that the laws generally applicable to medical fee disputes would not
change. But Howell’s award, in 1995, for her 1993 work injury created no
such right. As the Court of Appeals explained, this type of assumption is a
type of expectant right. Due process does not apply to mere expectant rights.
See BLACK’S LAW DICTIONARY 1323 (7th ed. 1999) (defining an expectant
right as “a right that depends on the continued existence of present conditions
until some future event occurs; a contingent right.”).
Medical treatments are inherently fluid, meaning the necessity of a
particular treatment may change over time based on change in a patient’s
14 conditions, new clinical evidence or changes in treatment guidelines. While
Hydrocodone may have been a reasonable and necessary treatment for Howell
thirty years ago, medicine has evolved and now that medication is no longer
recommended to treat Howell’s impairment on a long-term basis. No person
can possibly have a reasonable expectation that any particular drug previously
deemed compensable will always be deemed reasonable or necessary, or even
remain available.
Another facet of Howell’s argument is that the presumption created by
the ODG effectively imposes a new duty or obligation upon her and is therefore
an improper retrospective law. The Court of Appeals explained that, in
essence, Howell’s argument is that the adoption of the ODG, and its resulting
imposition of a presumption of non-compensability for Hydrocodone (that was
previously deemed reasonable and necessary for the treatment of her work
injury) diminished her award.
The Court of Appeals agreed with this contention, reasoning that when
Howell was awarded continuing medical benefits in 1995, she was entitled to
have the reasonableness and necessity of any prospective work-injury related
medical treatment assessed from the standpoint of the law as it existed; and at
that time, the operative statutes granted Howell her right to continuing medical
benefits. The Court of Appeals concluded that by promulgating 803 KAR
25:260 and 25:270, the Commissioner effectively altered that burden of proof
by creating a new, mandatory presumption of non-compensability regarding
certain medical treatments and prescriptions – a presumption not based on
15 any evidence of record, but rather solely upon whatever the ODG designates to
be “not recommended.”
According to the appellate court, before the regulatory adoption of the
ODG, there was no limit imposed on Howell’s doctor’s exercise of medical
judgment as to which prescriptions were needed by Howell, except to ensure to
implement only prescriptions that were medically reasonable and necessary –
an element Howell’s employer had the initial burden to disprove. Now, because
the ODG does not recommend any form of pain medication for Howell’s long-
term chronic back pain, the new presumption imposed by the regulatory
adoption of the ODG places the initial evidentiary burden, i.e., proving the
reasonableness and necessity of her Hydrocodone prescription, on Howell. As
such, the Court of Appeals concluded that applying the ODG was a substantive
change that would reduce the amount of indemnity ordered or awarded to her,
and therefore infringe upon her vested right to continued medical treatment.
While the Court of Appeals concluded the presumption was unconstitutionally
applied to Howell, it nonetheless upheld the ALJ’s determination that the
Hydrocodone was non-compensable, given the substantial evidence to support
that conclusion.
We disagree with the Court of Appeals. The use of a presumption in a
workers’ compensation medical fee dispute is a remedial change, not a
substantive one. The adoption of the ODG does not alter the substantive rights
of parties, but rather controls the evidentiary framework within which those
rights are adjudicated. Procedural amendments are “[t]hose amendments
16 which apply to the in-court procedures and remedies which are used in
handling pending litigation.” Rodgers v. Commonwealth, 285 S.W.3d 740, 751
(Ky. 2009) (quoting Commonwealth of Ky. Dep’t of Agric. v. Vinson, 30 S.W.3d
162, 168 (Ky. 2000)). A presumption, like the one created by the ODG in this
case, simply alters the procedures for handling the workers’ compensation
claim.
This Court delineated a two-part test for identifying a remedial statute in
Kentucky Ins. Guar. Ass’n. v. Jeffers ex rel Jeffers, 13 S.W.3d 606, 610 (Ky.
2000):
(1) Is the amendment limited to the furtherance, facilitation, improvement, etc., of an existing remedy; and (2) If so, does it impair a vested right.
Nothing in the adoption of the ODG changes Howell’s right to continued
treatment for her work-related injury, as ordered by the ALJ in 1995. At that
time, Howell was awarded future medical expenses related to her work injury.
Nothing in the ODG changes that award, as Howell is still entitled to medical
expenses for the reasonable and necessary treatment of her work injury. The
fact that Howell was initially prescribed Hydrocodone does not entitle her to
perpetual funding of that medication without any reconsideration of its medical
necessity under updated clinical standards. As explained in the regulations,
the “purpose of the treatment guidelines is to facilitate safe and appropriate
treatment of work-related injuries and occupational diseases.” 803 KAR
25:260 §2(1). It would be illogical, unreasonable, and most importantly unsafe,
17 if the guidelines governing treatment and compensability of workers’
compensation claims were not updated in thirty years.
The burden of proof in showing the non-compensability of the
Hydrocodone still remains with the employer, who obtained doctors to conduct
a review of Howell’s medical records and applied the ODG to conclude that
Hydrocodone was not recommended for this type of long-term use. Only if an
employer is successful in showing a treatment is not recommended does a
claimant have to counter that showing with medical evidence from another
physician.
The ODG’s designation of certain treatments as not recommended does
not categorically deny claimants access to those treatments. It merely requires
a treating physical to provide sound medical reasoning for the continued use of
certain medications. Further, there may be other portions of the ODG that
create presumptions in favor of workers’ compensation claimants, i.e., that a
certain treatment or prescription they are utilizing is recommended and
therefore compensable. Regardless of the burdens and presumptions,
ultimately the ALJ is given the discretion to weigh the evidence and reach a
determination. The ALJ could have agreed with Dr. Garrett that, in Howell’s
case, the continued used of Hydrocodone was appropriate. That is precisely
the role of an ALJ as a trier of fact.
The Court of Appeals also erred in equating medical benefits to income
benefits by concluding that any alteration in the process by which medical
benefits are reviewed constitutes an unconstitutional reduction in indemnity.
18 Importantly, there are three types of workers’ compensation benefits: income
benefits, medical expenses, and vocational rehabilitation. KRS 342.730,
342.020, and 342.710. The adoption of the ODG affected the type of medical
treatment deemed compensable but did not alter the amount of indemnity
benefits or duration of medical benefits. Medical benefits are subject to
ongoing review to ensure the treatment is necessary and reasonable. In
contrast, income benefits compensate an injured worker for lost wages and are
subject to statutory guidelines governing their calculation and duration. These
are two distinct benefits.
We reiterate that medical advancements, updated clinical guidelines, and
new treatment methods require a process that can evolve with the fast and
consistently evolving medical field. If medical and physical conditions were
static, KRS 342.125, the reopening statute, would be illusory. As stated in
Messer v. Drees, “[t]ime often tells more about medical cases than the greatest
of experts are able to judge in advance.” 382 S.W.2d 209, 212 (Ky. 1964).
Howell’s failure to prove that the continued use of Hydrocodone was medically
necessary and reasonable did not reduce any amount of indemnity ordered or
awarded. Howell’s medical benefits claim remains in existence, and therefore
the adoption of the ODG does not impair a vested right. As such, the statutory
amendment allowing the Commissioner to adopt treatment guidelines is
remedial, not substantive, and is not unconstitutional as applied to Howell’s
19 IV. The application of the Official Disability Guidelines is not unconstitutional.
Next, Howell argues the use of the ODG violates due process and equal
protection. We disagree. Generally, “acts of the legislature carry a strong
presumption of constitutionality.” Wynn v. Ibold Inc., 969 S.W.2d 695, 696 (Ky.
1998). “Workers’ compensation statutes concern matters of social and
economic policy.” Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 466 (Ky.
2011) (citing Cain v. Lodestar Energy, Inc., 302 S.W.3d 39, 42 (Ky. 2009)).
Therefore, this Court will uphold workers’ compensation legislation “so long as
it rationally relates to a legitimate state objective.” Cates v. Kroger, 627 S.W.3d
864, 870 (Ky. 2021).
Before the Court of Appeals, Howell argued that the Legislature had no
authority to delegate medical decision-making for injured workers to the ODG.
Howell appears to abandon this argument and, before this Court, has made
general assertions that use of the ODG violates due process and equal
protection. Howell focuses on the fact that claimants can only access the ODG
by purchasing a subscription to see what rules govern their claim. 4
Due process requires that affected parties be given “the opportunity to be
heard at a meaningful time and in a meaningful manner.” Mathews v.
Eldridge, 424 U.S. 319, 333 (1976) (internal citation and quotation omitted).
4 Floyd County argues that Howell has raised this payment argument for the
first time in this Court. We note that the ALJ and Board have no authority to consider constitutional claims. While it does not appear that Howell presented this precise argument to the Court of Appeals, she generally asserted equal protection and due process claims. For the sake of completeness, we nonetheless address her argument. 20 Specifically, in an administrative setting, this encompasses “a hearing, the
taking and weighing of evidence if such is offered, a finding of fact based upon
a consideration of the evidence, the making of an order supported by
substantial evidence, and, where the party's constitutional rights are involved,
a judicial review of the administrative action.” Morris v. City of Catlettsburg, 437
S.W.2d 753, 755 (Ky. 1969). Howell has received all procedures she is entitled
to under these guarantees of due process.
We note that the statutory adoption of external guidelines is not
unprecedented, nor is it per se constitutionally problematic. In determining
workers’ compensation benefit awards, the Legislature requires benefits be
based on the percentage of whole-body impairment as determined by the
American Medical Association’s Guides to the Evaluation of Permanent
Impairment. Like the ODG, this statutory framework requires physicians and
attorneys to access or purchase the AMA Guides to effectively participate in
workers’ compensation proceedings. 5 Floyd County asserts—and Howell does
not dispute—that all Department of Workers’ Claims staff may share relevant
sections with injured workers upon request, and that claimants may contact
specialists at the DWC with questions or complaints about medical treatment
denials. Those specialists are authorized to provide pertinent sections of the
ODG by email or print. Further, all ALJs have access to the ODG.
Additionally, we note that Howell attached portions of the ODG to pleadings in
5 Floyd County asserts that medical journals, OSHA regulations, legal research
services and legal treatises frequently require payment for full access, yet they are regularly relied upon in courts without constitutional issues. 21 the administrative record, demonstrating that she clearly has access to the
ODG and thus was not prejudiced in any way by lack of ODG access or
payment of any subscription fees while adjudicating her claim. 6
Howell’s equal protection claim is similarly unconvincing. The 14th
Amendment to the United States Constitution requires persons who are
similarly situated to be treated alike. Because workers’ compensation statutes
concern matters of social and economic policy, the statutes must be rationally
related to a legitimate state interest. Lodestar Energy, Inc., 302 S.W.3d at 43.
This Court presumes that legislative acts are constitutional. Id.
Howell has not shown that she was treated differently than any other
workers’ compensation claimant. The statute explicitly permitting the adoption
of the ODG applies equally to all workers’ compensation claimants. The fact
that the ODG requires a subscription payment does not change its application.
As noted above, if workers’ compensation claimants are unable to pay for
access, the Department of Workers’ Claims will provide access to the relevant
portions of the ODG via email or print. Further, Howell demonstrated that she
has access to the ODG, and therefore cannot assert any injury stemming from
the required purchased of access to the ODG.
Further, the ODG applies uniformly to all workers’ compensation
claimants and does not create any classifications that would trigger an equal
protection violation. Howell asserts that it treats claimants that can pay for
6 Howell offers no evidence the subscription fees are so substantial as to
interfere with her ability to pursue her claim. In any event, and as noted above, the Department provides ODGs to claimants upon request. 22 access to the ODG differently than claimants who cannot afford access. But,
as addressed above, she did have access to the ODG, as demonstrated by her
attachment of portions of the ODG in the workers’ compensation record below.
Therefore, Howell has not demonstrated any cognizable injury from an equal
protection standpoint.
CONCLUSION
For the foregoing reasons, we affirm the Court of Appeals, albeit for
different reasons, and uphold the ALJ’s determination that Howell’s
All sitting. Conley, Goodwine, Keller, Nickell, and Thompson, JJ.,
concur. Lambert, C.J., concurs in result only.
23 COUNSEL FOR APPELLANT/CROSS-APPELLEE, JUDY HOWELL:
Thomas W. Moak Moak & Nunnery, P.S.C.
COUNSEL FOR APPELLEE/CROSS-APPELLANT, FLOYD COUNTY BOARD OF EDUCATION:
W. Barry Lewis Lewis and Lewis Law Offices
APPELLEE, DR. CASSANDRA GARRETT:
Pro se
ADMINISTRATIVE LAW JUDGE:
Hon. Chris Davis
WORKERS’ COMPENSATION BOARD:
Hon. Michael Wayne Alvey, Chairman