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RENDERED: OCTOBER 29, 2015 TO BE PUBLISHED
Suprrittr Gurf 2014-SC-000422-WC
SHEILA WOOSLEY KINGERY DAT ts, Q.ncom tVAID APELNT
ON APPEAL FROM COURT OF APPEALS V. NO. 2013-CA-000855-WC WORKERS' COMPENSATION BOARD NO. 89-WC-43931
SUMITOMO ELECTRIC WIRING; DR. JAMES TODD DOUGLAS; HONORABLE JANE RICE WILLIAMS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD ApPELLEES APPELLEES
OPINION OF THE COURT BY JUSTICE NOBLE
AFFIRMING
The Appellant, Sheila Woosley Kingery, was injured in 1989 as a result of
her employment with the Appellee, Sumitomo Electric Wiring, and was awarded
workers' compensation benefits, including lifetime medical benefits for
treatment of the injury. In 2012, Sumitomo challenged the continuing
compensability of her treatment, claiming both that currently prescribed drugs
were not reasonable and necessary treatments of Kingery's present complaints
and also that such complaints were not causally related to the 1989 work
injury. The Administrative Law Judge found that the treatment was
compensable. The Workers' Compensation Board affirmed, but the Court of
Appeals reversed. On appeal to this Court, we affirm the Court of Appeals. I. Background
In the fall of 1989, Sheila Woosley Kingery developed a repetitive-use
injury during her employment with Sumitomo Electric Wiring. Kingery testified
that her job there required her to reach overhead to hang coils of wire on pegs.
She hung about three coils per minute. She testified that she had to strain to
loop the coils around the pegs because of her height (she is four feet, eight
inches tall). She had worked for Sumitomo for about one month when she
developed pain in her neck and upper back.
After she filed a workers' compensation claim, ALT Dwight T. Lovan
awarded benefits, including future medical benefits, for "a cervical and thoracic
spine strain or sprain superimposed upon pre-existing degenerative changes."
ALT Lovan further found that the occupational impact of Kingery's injury was
minimal and that the effects of the injury did not prevent her from returning to
her work activities with Sumitomo, "with the possible exception of the one job
she did hanging subassemblies" as that activity had led to the work injury.
Thereafter, Kingery returned to work for Sumitomo and was assigned to
a seated position inspecting wire connectors. But, she testified, because this
still involved "moving back and forth a lot" while her neck and back were
"messed up," she only did this for about two hours before she stopped working
for Sumitomo altogether. She testified that she subsequently had one other job
with another employer involving counting and packaging items into boxes,
which she quit after only a few months because she "couldn't do it either." She
has not worked since. On February 15, 2012, Sumitomo filed this medical-fee dispute to
contest the reasonableness and necessity of the treatment being provided by
Kingery's treating physician, Dr. Todd Douglas, as well as the relatedness of
that treatment to the 1989 work injury. Specifically, Sumitomo contested the
compensability of Kingery's use of Lorcet, 1 Skelaxin,2 Xanax,3 and Celexa, 4
whic Dr. ouglasw prescibngathetimeofilngofthismedicaldispute.
But after this dispute was filed, Dr. Douglas stopped treating Kingery for the
alleged effects of her work injury (while continuing to provide treatment for her
other unrelated medical concerns). 5 The parties and the ALJ, however, agreed
to proceed with resolving the dispute as filed as if the medications at issue were
still being prescribed by Dr. Douglas. Sumitomo also agreed to assist Kingery
in finding a new physician to take over her treatment.
In support of its medical dispute, Sumitomo filed the evaluation report of
Dr. David Randolph, 6 who evaluated Kingery at Sumitomo's request on
1 Lorcet 10/650 is a combination medication containing the narcotic pain reliever hydrocodone and the non-narcotic pain reliever acetaminophen. 2 Skelaxin is the trade name for the generic drug metaxalone and is used to treat muscle spasms. Xanax is the trade name for the generic drug alprazolam, which is a 3 benzodiazepine commonly used to treat anxiety and panic disorders. 4 Celexa is the trade name for the generic drug citalopram, which is an antidepressant in a group of drugs called selective serotonin reuptake inhibitors (SSRIs). 5Indeed, in his final visit note regarding the treatment at issue, Dr. Douglas documented that he had "recommended that [Kingery] consider getting another opinion from a specialist, as she may lose her Worker's Comp coverage soon," and that such a specialist `Imlay be able to help better with her pain." 6 Dr. Randolph is board-certified in occupational medicine. At the time of his deposition, he testified that he was also close to obtaining his PhD in epidemiology and biostatistics. 3 December 29, 2011. He also testified via deposition on August 27, 2012. Based
on the history Kingery provided, his review of the available medical records,
and his own physical examination of Kingery, Dr. Randolph concluded that her
current subjective complaints of pain are unrelated to the mild sprain or strain
injury caused by her work for Sumitomo in 1989 and that the drugs being
prescribed are not reasonable and necessary to treat those complaints,
whatever their cause.
Aside from Dr. Randolph's report and deposition, the post-award medical
evidence in this case is quite sparse. The record contains two treatment notes
from Dr. Douglas, dated February 1 and February 29, 2012, which were her
final two visits with him related to the work injury. Dr. Randolph also reviewed
and summarized in his report more than 50 medical records documenting
Kingery's treatment with Dr. Douglas from 1999 through 2011. According to
those notes, Dr. Douglas's treatment had been directed, in relevant part,
toward Kingery's complaints of pain—in her low, middle, and upper back, and
neck—as well as stress, anxiety, and depression. This treatment exclusively
involved prescribing various narcotics and other drugs. No objective
abnormalities are noted.
Kingery filed no medical evidence to rebut Dr. Randolph's opinions.
Instead, she testified about her original work injury, work history, medical
history, and current medical condition. As noted above, she testified that she
has been unable to work over the past two decades due to her medical
condition. She testified that pain in her neck and upper back has persisted and
worsened since her 1989 work injury and that it now involves everything from 4 her low back, to her mid-back and ribs, and up to her neck. She confirmed
that she has never had surgery for her complaints and that surgery has never
been recommended. She testified that her low-back pain first began as a result
of a fall in 2011, and she disputed the accuracy of Dr. Douglas's treatment
notes prior to 2011 referencing low-back pain as her primary complaint. She
testified that the drugs prescribed by Dr. Douglas would dull the pain but that
it never completely went away.
Despite the absence of any medical evidence to the contrary, the AL.J
disregarded Dr. Randolph's opinions and instead relied solely on Kingery's lay
testimony to find that her current complaints were related to the 1989 work
injury and that the drugs being prescribed for those complaints were
reasonable and necessary. Sumitomo filed a petition for reconsideration,
arguing that it was inappropriate for the ALJ to disregard the only expert
medical evidence in the record—the report and testimony of Dr. Randolph—in
favor of Kingery's lay testimony. The ALJ overruled the petition, and the Board
affirmed.
Sumitomo appealed to the Court of Appeals, which reversed, holding that
Kingery had failed to produCe medical evidence to sustain her burden of
proving that the treatment by Dr. Douglas was causally related to her 1989
work injury or a condition caused by it. More specifically, the Court of Appeals
concluded that, under the circumstances, the medical cause of Kingery's
complaints of pain would not be apparent to a lay person and, thus, that it was
impermissible for the ALJ to disregard the medical evidence in favor of Kingery's lay testimony to find that her current condition and complaints of
pain were medically caused by the 1989 work injury.
Kingery now appeals that decision as a matter of right. Additional facts
will be developed as necessary in the discussion below.
II. Analysis
Kingery argues that the Court of Appeals was incorrect in concluding
that she had the burden of proving that her current complaints were causally
related to the 1989 work injury, and that there was substantial evidence to
support the ALJ's finding that her current complaints are causally related to
her work injury. However, this Court affirms the Court of Appeals because we
believe that the evidence compelled a finding in favor of Sumitomo on the
compensability of the disputed treatment, whether or not it had the burden of
proof on that issue. Thus, we do not reach the question whether Kingery or
Sumitomo had the burden of proof on causation.
It is well-settled that the ALJ, as fact-finder, has the "sole authority to
determine the quality, character, and substance of the evidence." Square D Co.
v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993). And a[w]here ... the medical
evidence is conflicting, the question of which evidence to believe is the
exclusive province of the ALJ." Id. The problem here, though, is that there was
no conflicting medical evidence in the record. Rather, the only medical evidence
that was before the ALJ supported Sumitomo's position on the primary issue of
medical causation of Kingery's current complaints. The ALT, however, chose to
disbelieve the uncontroverted medical evidence to find in favor of Kingery.
6 But, as the Court of Appeals noted, ALJs are not permitted to rely on lay
testimony, personal experience, and inference to make findings that directly
conflict with the medical evidence, except in limited situations, such as matters
involving observable causation. Mengel v. Hawaiian-Tropic Northwest and
Central Distributors, Inc., 618 S.W.2d 184, 187 (Ky. App. 1981). In other words,
"when the question is one properly within the province of medical experts, the
[ALJ] is not justified in disregarding the medical evidence." Id.
First, none of the decision-makers below analyzed the compensability of
the Xanax and Celexa separately from that of the Lorcet and Skelaxin,
although Dr. Randolph did so in his report and deposition testimony. These
two pairs of drugs present distinct issues because the latter treat physical
ailments (which are what Kingery's original work injury involved) while the
former treat psychological concerns (which her work injury did not involve).
After scrutinizing the record for substantial evidence relating Kingery's
use of Xanax and Celexa to the 1989 work injury, it is apparent that there is
none. Dr. Douglas, her former treating physician, stated in his most recent
treatment note that Kingery was taking those drugs because she was "[n]ot
able to work, and decreased income causes her a lot of stress."
But her present inability to work cannot be related to her 1989 work
injury because, as ALJ Lovan found in the original opinion and award, the
work-related injury did not prevent her from returning to her employment with
Sumitomo (or any other employment for that matter). Any present stress or
anxiety she might experience as a result of not working, then, is necessarily
unrelated to her work injury. Indeed, the original opinion and award includes 7 an express fmding that any alleged psychological concerns were not the result
of the work injury. Any medical expenses related to relieving such symptoms
are thus non-compensable. Accordingly, Sumitomo cannot be obligated to pay
for Kingery's use of Xanax and Celexa.
Next, with respect to the Lorcet and Skelaxin, there can be no doubt that
the medical cause of Kingery's subjective complaints of pain for which these
drugs were being prescribed (as well as the reasonableness and necessity of
those drugs to treat such complaints) is a question properly within the province
of medical expert opinion. Mengel, 618 S.W.2d at 187. Therefore, the ALT was
not justified in disregarding the medical evidence in favor of Kingery's lay
testimony. Id.
Kingery's original work-related injury to her neck and upper back
occurred in November 1989, more than twenty-one years before Sumitomo filed
this medical-fee dispute. By all accounts it was a mild sprain or strain injury
that was caused by repetitively reaching overhead to hang coils of wire on pegs
for a period of weeks.
In the intervening years, however, she developed a multitude of
worsening health concerns—including morbid obesity, 7 insulin-dependent
diabetes, high blood pressure, congestive heart failure, chronic obstructive
pulmonary disease (COPD) and asthma, manic depression and anxiety with
history of suicide attempts, and gastroesophageal reflux disease—requiring
7 At her deposition, Kingery testified she weighed about 270 pounds. According to Dr. Randolph, this gave her a body mass index (BMI) of about 60; and BMIs in excess of 30 are generally considered obese.
8 extensive clinical interventions and regular pharmacological treatment.
Substantial, objective medical evidence demonstrated the existence of these
conditions.
On the other hand, there was no objective medical evidence of any
physiological condition that can explain Kingery's present complaints of neck
and back pain. And Dr. Randolph opined that such "medically unexplained
symptoms" most certainly cannot be attributed to the mild, repetitive-use, soft-
tissue strain she experienced during her one month of employment with
Sumitomo over two decades ago.
Kingery testified that much, if not all, of her ongoing and progressively
worsening issues are effectively the result of deconditioning due to her claimed
inability to work (or walk, or sit, or stand, for extended periods), which she
attributed to her 1989 work injury. Assuming she is correct that her present
issues are the result of inactivity and deconditioning, they are necessarily
unrelated to her work injury for the same reason that her psychological issues
and treatment are non-work-related: because the findings in the original
opinion and award were that the injury resulted in only minimal occupational
restriction and did not prevent her from working. She never reopened the
original award to seek additional impairment for a worsening of her condition,
and thus she is bound by the original award's findings. Kingery's failure to
work—and the deconditioning that unavoidably accompanied her idleness—
cannot be attributed to the 1989 injury. It instead stems from her own choice
not to work, despite her having had the ability to do so in 1989, and to remain
inactive. 9 And this is where Dr. Randolph's expert opinion comes into play.
According to Dr. Randolph, Kingery's current medically unexplained
symptoms—i.e., unverifiable complaints of pain and related magnifications of
symptoms, such as universally-restricted range of motion and inconsistent
strength-testing resultsbear no physiological relationship to the mild
workplace strain she experienced in 1989. As Dr. Randolph put it, "there is
absolutely nothing [in the mechanism of injury described by Kingery] that
would fit the pattern of subjective complaints lasting more than 20 years. ...
There is nothing in published medical literature that would indicate an
explanation for these subjective complaints lasting for 23 years." Instead, Dr.
Randolph opined that the "significant unrelated medical comorbid states,"
principally her morbid obesity, are the actual source of her ongoing subjective
complaints. Given the time frame and extraneous health issues involved, the
medical causation of Kingery's current complaints was necessarily within the
province of medical expertise. See Mengel, 618 S.W.2d at 187.
Additionally, Dr. Randolph's opinions with respect to the reasonableness
and necessity of Kingery's use of each of the drugs were also based on sound
medical science and reasoning and were well within the sole province of
medical expert opinion. He aptly noted the substantial dangers and health
risks attendant to use of these drugs, both individually and collectively with
the multitude of drugs Kingery was being prescribed for her many other
unrelated complaints and clinical conditions. As to the opioid (Lorcet) and
muscle relaxant (Skelaxin) in particular, he contrasted the substantial risks
the narcotic drugs posed with their lack of long-term efficacy in treating 10 chronic benign pain (a fact that is borne out here by Kingery's persistent, or
even worsening, and migrating complaints). And as Dr. Randolph noted, such
views are widely accepted in the medical community and supported by a
significant body of peer-reviewed medical literature.
Yet, in Kingery's view, all that uncontroverted medical evidence can be
tossed aside, without any countervailing evidence supporting the decision to do
so, because the ALJ decided to simply disbelieve that proof. The ALJ gave two
bases for disbelieving Dr. Randolph's expert medical opinions, neither of which
hold up under scrutiny.
First, the ALJ found that Dr. Randolph's testimony lacked credibility and
was unreasonable because he recommended "no treatment at all for her work-
related condition." This finding is not supported by the record.
Contrary to the ALJ's finding, Dr. Randolph did recommend treatment
for Kingery specifically geared toward alleviation of her subjective chronic pain
(despite believing that such complaints were not related to the two-decade-old
strain injury). In addition to significant intervention for her many unrelated
problems, he believed that the best treatment for Kingery would be to stop
taking the drugs—drugs that had not only proven ineffective in treating her
long-term chronic pain, but were in all likelihood at least partly to blame for
the worsening, migrating complaints —and that she commit to a home exercise
program directed at the true source of the vast majority of her problems (i.e.,
her morbid obesity and deconditioning from inactivity). Though this fell short of
a recommendation of pharmacological or surgical intervention, it is not a
recommendation of no treatment at all. 11 And, rather than casting doubt on the credibility of those
recommendations, Kingery's testimony corroborates them. Again, she admitted
that her difficulties are ever-present, despite all pharmacological interventions.
And, she claims her problems have worsened and migrated all over her torso. ,
Dr. Randolph's recommendations account for these concerns and reflect, in his
expert medical opinion, the reality that her drug regimen has not only been
unsuccessful in treating her complaints, but is also likely to blame, at least in
part, for the progression of her worsening state of health. There is simply no
other reasonable medical explanation for why Kingery would still be
complaining, after over twenty years, of pain related to a past sprain or strain
injury, at least not in the record.
And the second dubious basis provided by the ALT for rejecting Dr.
Randolph's opinions—the doctor's purported "skeptic[ism] that [Kingery's]
original injury was related to her work for [Sumitomo]," which was
unreasonable because "[t]his issue has long been settled since ALT Lovan
found her injury to be work related in 1992"—is also unsupported in the
record. Upon careful review of Dr. Randolph's evaluation report, as well as the
transcript of his deposition testimony, it is clear that nowhere in either source
of testimony did Dr. Randolph state that he was skeptical that Kingery's work
with Sumitomo caused the original work injury. He did state that he believed
her present complaints of pain were unrelated to the 1989 injury, but that is a
far cry from claiming the original injury was not related to her work for
Sumitomo.
12 At most, Dr. Randolph's testimony indicates that he was hesitant to
provide a diagnosis for what occurred in November 1989. But that was an
entirely reasonable response because, as Dr. Randolph explained, there was a
notable absence of contemporaneous medical records documenting the injury
at that time. Nonetheless, despite that difficulty, Dr. Randolph concluded:
"based on what I found from her and what she told me and what the records
showed, realizing that nothing was contemporaneous with that event, I would
say that she had some kind of a cervical sprain/strain injury." Far from
demonstrating skepticism of the original work injury, Dr. Randolph agreed,
albeit cautiously, that Kingery had a neck or upper-back injury in 1989. This
was consistent with the work injury originally found by ALJ Lovan.
It is thus clear that the current ALJ rejected the uncontroverted medical
opinions, at best, based on a misreading of the record. In any event, the ALJ's
findings in this respect were not based on substantial evidence and were
insufficient to justify rejection of the medical evidence in this case.
Of course, that is not to say that reasonable medical minds could not
disagree with Dr. Randolph's conclusions. After all, the human body is perhaps
the most complex system known to humankind, so very little will ever garner
unanimous consensus among medical professionals and experts. But this is
exactly why our legal system requires reliable expert proof on issues such as
medical causation and the necessity of medical treatment when they would not
be apparent to a layperson. It does so because this is the only way to
reasonably ensure that the fact-finder answers those questions reasonably,
rather than arbitrarily. 13 Such questions are solely within the province of medical experts who are
equipped with the proper education and experience to enable them to provide
reliable answers within a reasonable degree of medical probability. We cannot
accept ignoring uncontroverted medical evidence in favor of unreliable lay
testimony and the ALJs' own proclivities and experience when determining
such medical issues. That is not substantial evidence.
And it would not have required much medical evidence to support the
ALJ's decision to disregard Dr. Randolph's opinions here. Some contrary report
from Kingery's treating physician, for example, likely would have sufficed.
But that is not what occurred here. Indeed, nearly the opposite
happened: Dr. Douglas proactively declined to continue treating Kingery for her
alleged work-related complaints when he became aware that the
compensability of the treatment he was providing for those complaints was
being questioned (while continuing to see her for her other, unrelated medical
problems). Even Kingery's treating physician was unwilling to opine that the
drugs he was prescribing were reasonable and necessary to treat her
complaints resulting from the 1989 work injury.
In the end, our rationale is slightly different than that of the Court of
Appeals, but of course "an appellate court may affirm a lower court's decision
on other grounds as long as the lower court reached the correct result."
Emberton v. GMRI, Inc., 299 S.W.3d 565, 576 (Ky. 2009). Whether or not the
employer had the burden of proof, under the circumstances of this case, the
evidence compels a finding that the treatment at issue is not compensable. See
Wagoner v. Smith, 530 S.W.2d 368, 369 (Ky. 1975) ("In order to reverse the 14 findings of the board unfavorable to the claimant and upon which he had the
burden of proof the test is whether the-evidence compelled a finding in his
favor."). Upon careful review of the entire record, it is clear that the ALJ's
decision to wholly reject the uncontroverted medical evidence introduced by
Sumitomo in favor of Kingery's lay testimony, and thereby find that Kingery's
use of Xanax, Celexa, Lorcet, and Skelaxin is reasonable and necessary and
related to the 1989 work injury, - was not based on substantial evidence.
The questions in this medical dispute were undeniably those which
should fall within the sole province of expert medical opinion. When all the
medical evidence on such a question points to one conclusion, the ALJ acts
outside the immense discretion she otherwise typically enjoys when she rejects
that evidence in favor of lay testimony to reach a contrary conclusion without
sufficient justification for doing so.
III. Conclusion
For the reasons explained above, this Court finds that the evidence
compelled finding the treatment at issue in this medical dispute non-
compensable. Accordingly, this Court affirms the Court of Appeals' reversal of
the Workers' Compensation Board and Administrative Law Judge.
Abramson, Cunningham and Venters, JJ., concur. Minton, C.J., dissents
by separate opinion in which Barber and Keller, JJ., join.
MINTON, C.J., DISSENTING: I respectfully dissent. The majority
opinion's analysis exceeds the proper scope of appellate review by engaging in a
wide-ranging reweighing of the proof, usurping the role of the ALJ. Our task is
simply to "address new or novel questions of statutory construction, or to 15 reconsider precedent when such appears necessary, or to review a question of
constitutional magnitude."8 And this case presents none of those challenges.
Its statements to the contrary notwithstanding, the majority follows the
misguided direction taken by the majority of the Court of Appeals panel,
which—as the dissenting judge on that panel aptly observed—placed the
burden of proof on Kingery, despite the fact that Sumitomo was the party
seeking to reopen the claim to contest medical bills. On a motion to reopen,
"[t]he 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." 9
Sumitomo filed its motion to dispute Kingery's medical bills and
supported it with a report from Dr. Randolph, who opined that Kingery's
current impairments were not related to the original work-related injury; In
response, Kingery did not submit medical evidence but testified that she has
experienced pain ever since the work-related injury and that Dr. Douglas's
treatment had given her some relief.
As the fact-finder, the ALI . had sole authority to determine the weight,
credibility, substance, and inferences to be drawn from the evidence.w And the
ALJ has the discretion to choose from conflicting evidence which evidence she
finds more persuasive.
8 Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). 9 Crawford & Co. v. Wright, 284 S.W.3d 136, 140 (Ky. 2009) (citing Mitee Enterprises v. Yates, 865 S.W.2d 654 (Ky. 1993) (holding that the burden of contesting a post-award medical expense in a timely manner and proving that it is non- compensable is on the employer). 10 Paramount Foods, Inc v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). 16 The AU disbelieved Dr. Randolph's report, finding it fundamentally
flawed because the doctor rejected out of hand the fact that Kingery sustained
a work-related injury—a matter that has been the law of this case since 1992.
Unlike the lay evidence rejected in Mengel 11—the case cited by the majority
Kingery was capable of rebutting Sumitomo's motion by testifying about the
pain she experienced since the work-related injury. And the ALJ did not abuse
her discretion in finding Kingery credible.
Because the ALJ rejected the proof offered by Sumitomo and Sumitomo
had the burden of showing Kingery's medical treatment was not related to the
work-related injury, the ALJ did not err by denying Sumitomo's motion. I
would reverse the decision of the Court of Appeals and reinstate the ALJ's
decision.
Barber and Keller, JJ., join.
11 Mengel, 618 S.W.2d 184. 17 COUNSEL FOR APPELLANT:
McKinnley Morgan Morgan Collins 86 Yeast 921 South Main Street London, Kentucky 40741
COUNSEL FOR APPELLEE, SUMITOMO ELECTRIC WIRING:
Joel Walter Aubrey Brian David Wimsatt Pohl 83 Aubrey, P.S.C. 303 North Hurstbourne Parkway, Suite 110 Louisville, Kentucky 40222
APPELLEE, DR. JAMES TODD DOUGLAS:
PO Box 1367 Morgantown, Kentucky 42261
APPELLEE, HONORABLE JANE RICE WILLIAMS:
Rice, Hendrickson 8s Williams 217 S. Main Street, Suite 10 London, Kentucky 40741
APPELLEE, WORKERS' COMPENSATION BOARD:
Dwight Taylor Lovan, Executive Director Office of Workers' Claims Prevention Park 657 Chamberlin Avenue Frankfort, Kentucky 40601
COUNSEL FOR AMICUS CURIAE, THE KENTUCKY CHAPTER OF AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS:
Eric M. Lamb Lamb 83 Lamb, PSC PO Box 34275 Louisville, Kentucky 40232-4275 18