Tuesday, July 12, 2016

Kentucky, Stare Decisis, and Noncompliance Standards

An interesting opinion of the Kentucky Supreme Court came to my attention recently. The May 5, 2016 decision in Halcomb v. American Mining is worthy of a read. But a read is all it is worth, because though the Court's lengthy analysis brought closure to this case; it is arguably worthless beyond the four corners of that dispute. It astounds me that in the modern age there are courts that decide cases and then specifically and intentionally insist that no one ever use or refer to them. This erodes the judicial concept of stare decisis which is the bed rock or American jurisprudence. 

I have pointed out the failure of stare decisis before, and the focus has sometimes been Kentucky. Essentially, the decisions of courts generally have value on a variety of levels. Obviously, the people involved in a particular case are interested in the outcome. They are the ones that have litigated a question, and pursued appellate review. They are deserving of answers as to the appropriate application of the law; after all, they paid for it. 

But there is value to the rest of the marketplace as well. What people want, and have a right to expect, from appellate courts is transparency and predictability. Armed with such knowledge, from precedent, parties can resolve their own differences much of the time. Armed with that precedent, if clearly written and complete, trial judges can competently adjudicate the cases that do not resolve. And, in that process there is minimal need to prosecute appellate review that is repetitious, freeing the appellate courts to deal with the new and novel questions that do not fit within the analysis of previous precedent. 

The Kentucky Supreme Court does not ascribe to this. The Court has a rule to prevent people from relying on its decisions. In a cover page to Halcomb v. American Mining, the Court succinctly cited that order and admonished anyone from ever citing or using this case as binding precedent in "any case" in "any court of this state." The full admonishment follows in all caps (emphasis in original). 

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2001, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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.

The logic of this is unclear at best. In the digital age there is no cost associated with publishing a court's opinions. Is there some valid and logical reason to forbid trial courts from relying upon decisions the Supreme Court of a state has already rendered and explained?

The case is interesting substantively as well.  The injured worker in this case appealed when the trial judge concluded the employer was no longer responsible for narcotic medications. 

The injured worker settled his lost-wage (called "indemnity") claims from a 2003 accident at work. He thereafter remained under doctor's care for chronic back pain, for which the treating physician prescribed Lortab. The doctor utilized drug screens to monitor compliance, something not uncommon in modern pain management care. In 2012 and 2013 three such screens were positive for marijuana. 

This led the employer/carrier (E/C) to seek permission to stop providing the opioid Lortab. Two other doctors opined that the testing indicated use of marijuana, and recommended that the Lortab be discontinued. At trial, the injured worker produced two later drug tests that were free from marijuana evidence. The administrative law judge (ALJ) granted the E/C request and cited Kentucky's standards for prescription dispensing. 

The Kentucky standards for prescribing and dispensing controlled substances say 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."

Kentucky, along with many states, has had a significant battle with opioid abuse. In affirming the trial judge, the Supreme Court concluded that evidence supported a finding of "non-compliance by testing positive for illegal drugs." As the E/C sustained its burden under the law, it was "relieved of any obligation for payment of narcotic medications pursuant to KRS 342.020."

The injured worker appealed that decision to The Workers' Compensation Board and the Court of Appeals, each affirmed. In the face of that unanimity and clarity, it is unclear why the state's Supreme Court undertook review of the case; a case which does not appear, by the Court's description or explanation, to offer anything unique or unclear for analysis. 

The Supreme Court noted that "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.'" This would appear to be a reasonably narrow scope. 

Then the Court explained that the "the sole issue on appeal then is whether substantial evidence supports the ALJ's conclusion." Arguably whether there is such evidence or not is not within the narrow, just-stated, rationale for Supreme Court review. Critics might suggest that the Court expresses a narrow scope for its efforts, then curiously undertakes this review of a mundane "competent evidence" dispute, and compounds curiosity by forbidding its publication or citation. 

The Court describes at length some disagreements among various medical experts who were heard by the ALJ. The Court concluded "the ALJ was within his discretion to find Dr. Nemeth's opinion persuasive." And, that the statutory authority cited "supports the ALJ's decision." So, because the ALJ decision "is supported by substantial evidence," it "shall not be disturbed."

In all, a well reasoned and clearly explained decision by the State's highest court. The kind of an opinion that could provide guidance to the trial courts and attorneys. Apparently, there is no existing authority on this point, or the Court would merely have said "the  trial judge is affirmed," and cited that prior authority. But the Court saw fit to publish an opinion. 

Armed with such an explanation, attorneys might provide cogent predictions to clients in similar circumstances. Armed with such an explanation, ALJs might efficiently and effectively adjudicate similar cases in the future. But, with the Court's admonition against publication or citation, the reasoned and clear conclusions in this case are perhaps effectively limited to this case. 

I struggle with understanding how such limitation is justified, how it serves the purpose of the process or the people of a state. It is interesting. Perhaps some of my Kentucky readers will chime in and straighten me out.

As an aside, I am also curious about the import of the controlled substance standards. Would the outcome, non-compliance, have been the same if the worker had tested positive for alcohol instead of marijuana? As marijuana gains acceptance, testing such as this may become more difficult to effectuate. 



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