IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Lonnie Hamilton, : Petitioner : : v. : : Workers' Compensation Appeal : Board (The School District of : Philadelphia), : No C.D Respondent : Submitted: March 16, 2012 BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: June 11, 2012 Lonnie Hamilton (Claimant) petitions for review of the order of the Workers Compensation Appeal Board (Board) which affirmed the Workers Compensation Judge s (WCJ) termination of Claimant s benefits as of June 20, 2008, and dismissed six Petitions for Review of Utilization Review Determinations (UR Petitions) as moot. Claimant sustained a lower back sprain and strain in 2008 while employed with the School District of Philadelphia (Employer). Claimant received workers compensation benefits at the rate of $ per week based on a preinjury average weekly wage of $ On July 23, 2008, Employer filed a Petition to Terminate and alleged that Claimant fully recovered from the effects of his work injury as of June 20,

2 2008. On September 5, 2008, Employer filed a Petition to Suspend Claimant s Benefits based upon a job offer extended to Claimant. The petitions were assigned to Alan Gilbert (WCJ Gilbert) and hearings were held and evidence accepted on September 16, 2008, January 23, 2009, March 3, Employer presented the deposition testimony of Ira Sachs, D.O., (Dr. Sachs) a board-certified orthopedic surgeon, who reviewed medical records and examined Claimant on June 20, Claimant described his pain as agonizing. Deposition of Ira Sachs, D.O., December 3, 2008, (Dr. Sachs Deposition) at 9; Reproduced Record (R.R.) at 108a. Dr. Sachs examination did not demonstrate any objective evidence of lumbar radiculopathy. Dr. Sachs Deposition at 14; R.R. at 109a. He agreed that Claimant possibly sustained a lumbar strain or sprain, but at the time of his evaluation, there was no residual evidence of that. Dr. Sachs Deposition at 14; R.R. at 109a. Dr. Sachs opined that Claimant fully recovered from his work injury and that Claimant was capable of performing his pre-injury job without restrictions. Claimant testified that on February 13, 2008, he was shoveling snow and chopping ice for Employer when he hurt his low back. Hearing Transcript, January 23, 2009, (H.T. 1/23/09) at 9-10; R.R. at 34a35a. He did not feel that he could return to his job because it required him to be mobile all day, walk up and down steps at a moment s notice, stand on a ladder for some length of time, perform plumbing jobs which required him to get on [his] knees, bend over, get under the sinks and small places, and lift and carry heavy bags of salt. H.T. 2

3 1/23/09 at 12; R.R. at 37a. Claimant testified he was willing to try light duty if it was offered. Claimant presented the deposition testimony of Zohar Stark, M.D. (Dr. Stark), a board-certified orthopedic surgeon, who first treated Claimant on June 16, His physical examination revealed positive sitting root test and limited range of motion. Deposition of Zohar Stark, M.D. December 22, 2008, (Dr. Stark Deposition) at 14; R.R. at 78a. After his examination, a review of Claimant s history and an MRI study, Dr. Stark diagnosed Claimant with a sprain of his lumbar spine, a disc protrusion at L3-4 and lumbar radiculopathy. Dr. Stark Deposition at 8; R.R. at 72a. Dr. Stark compared a pre-injury MRI with the postinjury MRI and concluded that there was an aggravation of his [degenerative changes to his] discs at L3-4 and L4-5. Dr. Stark Deposition at 10-11; R.R. at 74a-75a. He opined that these injuries were caused by the work-related incident on February 13, He also believed that Claimant was not fully recovered and he was not capable of returning to his regular job duties. Dr. Stark believed Claimant could perform sedentary work. Dr. Stark Deposition at 16-17, 19; R.R. at 80a-81a, 83a. He saw Claimant a total of three times. Between January 2009, and August 2009, Employer filed six utilization review requests (UR Request) concerning chiropractic and pain management treatment Claimant received from various health care providers from March 2009 forward. Specifically, Employer filed UR Requests for treatment provided by Peter Schatzberg (Dr. Schatzberg), Kristin Drzewiecki (Dr. Drzewiecki), Anthony DeEugenio (Dr. DeEugenio), James Robinson (Dr. Robinson), David Bosacco (Dr. 3

4 Bosacco), and Daniel Meers (Dr. Meers). However, because Dr. Schatzberg never treated Claimant, (he was the owner of the chiropractic office), the Utilization Review Organization (URO) did not review that request. The remaining UR Requests concerned treatment provided by Dr. Drzewiecki, Dr. DeEugenio, Dr. Robinson, Dr. Bosacco and Dr. Meers all of whom worked for Philadelphia Pain Management. With respect to treatment provided by Dr. Drzewiecki, the URO found that the chiropractic treatment she provided Claimant one to three times a week was reasonable logical for treatment of S1 radiculopathy and disc degeneration with broad based disc protrusion and marginal osteophytosis impinging upon the dural sac and narrowing both neural foramina at L3-4 and mild disc bulge at L4-5. Utilization Review Determination, June 12, 2009, at 3; R.R. at 161a. The URO recommended further scrutiny if this treatment extended beyond six months from the date of the review. Employer filed a petition for review from this utilization review determination. With respect to the remaining UR Requests, the URO found the treatment provided by Dr. DeEugenio on and after April 28, 2009, to be reasonable and necessary in part (medical referrals) and not reasonable and necessary in part (chiropractic treatment); the treatment provided by Dr. Robinson on and after May 5, 2009, was not reasonable and necessary; the treatment provided by Dr. Bosacco on and after March 17, 2009, was reasonable and necessary, in part, and not reasonable and necessary, in part; and the treatment provided by Dr. Meers on and after July 23, 2008, was not reasonable and necessary. Claimant petitioned for review of these five utilization review determinations. 4

5 The matter was subsequently reassigned to Peter Perry (WCJ Perry). On August 11, 2009, a final hearing was held on the Petitions for Termination and Suspension. Claimant requested consolidation of the UR Petitions, Termination Petition and Suspension Petition. WCJ Perry denied the Motion to Consolidate. A briefing schedule was set and the record with respect to the Suspension and Termination petitions was closed and certified on August 11, A final hearing was held on the UR Petitions. On January 20, 2010, all pending petitions were reassigned to Sandra Craig (WCJ Craig). On January 21, 2010, WCJ Craig circulated a Notice of Hearing scheduled for February 18, On February 3, 2010, WCJ Craig granted Employer s Petition to Terminate Benefits as of June 20, At the scheduled hearing on February 18, 2010, Claimant renewed his Motion to Consolidate the UR, Suspension and Termination Petitions. WCJ Craig scheduled a special hearing on March 1, 2010, at which time the parties presented arguments on the pending motions. On March 8, 2010, WCJ Craig denied Claimant s motion to consolidate and denied and dismissed all pending UR Petitions as moot because Claimant s benefits were terminated as of June 20, Claimant appealed from WCJ Craig s February 3, 2010, and March 8, 2010, decisions. The Board affirmed the decision of WCJ Craig on November 11,

6 Claimant appeals 1 and raises four issues: (1) whether the Board erred when it affirmed WCJ Craig s denial of Claimant s Motion to Consolidate; (2) whether WCJ Craig failed to certify the record on the Termination and Suspension Petitions; (3) whether the Board erred when it upheld WCJ Craig s February 3, 2010, and March 8, 2010, Decisions as well-reasoned and supported by substantial evidence; and (4) whether the Board erred when it affirmed WCJ Craig s dismissal of the UR Petitions as moot? Motion to Consolidate. I. Consolidation First, Claimant contends that WCJ Craig erred when she denied his Claimant contends that evidence in the UR Petition proceeding would have demonstrated that certain medical treatment was reasonable and necessary and consequently it would have demonstrated that he had not fully recovered from his work-related injury. Thus, the UR and Termination/Suspension proceedings should have been consolidated. This Court must disagree. First, Section of the Workers Compensation Judge Rules provide that when proceedings involve common questions of law or fact, a judge may consolidate the proceedings for hearing on all matters in issue and may make appropriate orders concerning the conduct of the proceeding to avoid any 1 This Court s scope of review is limited to determining whether findings of fact are supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Russell v. Workmen s Compensation Appeal Board (Volkswagen of America), 550 A.2d 1364 (Pa. Cmwlth. 1988). 6

7 unnecessary costs of delay. 34 Pa. Code The decision to consolidate is discretionary, not mandatory. Second, Claimant s argument is based on pure speculation and a misunderstanding of the law. He contends, without support, that WCJ Craig would have decided differently if she had the opportunity to consider the relevant evidence in the UR proceedings. However, contrary to Claimant s contention, the URO s conclusion that some of Claimant s pain management treatment was reasonable and necessary did not necessarily establish that Claimant remained disabled by his work-related injury. Corcoran v. Workers Compensation Appeal Board (Capital Cities/Times Leader), 725 A.2d 868 (Pa. Cmwlth. 1999). In Corcoran, this Court addressed, in the context of a termination petition, whether a UR determination concluding that James Corcoran s (Corcoran) physical therapy treatments were reasonable and necessary precluded the WCJ's finding that Corcoran had fully recovered from his work-related injury. Holding that the UR determination was irrelevant, this Court reasoned: The... regulations clearly limit the URO's role to deciding the issue of reasonableness and necessity of medical treatment, and unambiguously exclude from the URO's scope of review the issues of whether medical treatment is causally related to a workplace injury and whether a claimant is disabled. Questions of causation must be decided by a [WCJ] and not by a URO.. Because the scope of review of a URO is strictly limited to reviewing the reasonableness and necessity of medical treatment, the URO's decision that the physical therapy 7

8 provided to Claimant [Corcoran] was reasonable and necessary does not establish that the treatment was causally related to Claimant's [Corcoran s] work-related injury or that Claimant [Corcoran] remains disabled by his work-related injury...these critical questions of causation and disability were within the exclusive province of the WCJ to resolve, and not the URO. For that reason, the WCJ's findings that Claimant's [Corcoran s] work-related disability ceased and that any remaining disability was the result of a non-work-related condition cannot be affected by the URO's determination. Hence, the URO report is irrelevant to the issues presented in the Employer's termination petition. Corcoran, 725 A.2d at 871 (emphasis in original) (citations omitted). Similarly, in Hoffmaster v. Workers' Compensation Appeal Board (Senco Prods., Inc.), 721 A.2d 1152, (Pa. Cmwlth. 1998), this Court addressed, in the context of a review medical treatment petition, whether a UR determination concluding that Timothy Hoffmaster s (Hoffmaster) rheumatological treatment was reasonable and necessary precluded the WCJ's finding that Hoffmaster's rheumatological treatment was not casually related to his work-related injury. WCJ's finding, this Court explained: Holding that the UR determination did not preclude the [T]his Court has acknowledged that UROs have the authority to decide only the reasonableness or necessity of the treatment at issue. They have no jurisdiction, however, over either the causal relationship between the treatment under review and the employee's work-related injury or the issue of whether the employee is still disabled. Thus, the February 7, 1995 URO determination could only have determined whether Dr. Roumm's rheumatological treatment was reasonable and necessary. The URO could not have determined whether Dr. Roumm's rheumatological treatment of Claimant 8

9 [Hoffmaster] was causally related to Claimant's [Hoffmaster s] work injury. Thus, the URO's determination that Dr. Roumm's treatment of Claimant [Hoffmaster] was reasonable and necessary could not have a preclusive effect on the WCJ's determination regarding the different and discrete issue of whether such treatment was causally related to Claimant's [Hoffmaster s] compensable work-related injury. Accordingly, the WCJ was not precluded from determining that Dr. Roumm's treatment was not causally related to Claimant's [Hoffmaster s] work injury. Hoffmaster, 721 A.2d at 1155 (citations and footnotes omitted). Here, the issue before the URO was whether Claimant s pain management treatment was reasonable and necessary to treat various conditions including S1 radiculopathy, disc degeneration, disc protrusion, marginal osteophytosis and mild disc bulge at L4-5. The URO was not authorized to decide the causal relationship between the treatment under review and the injuries. Nor was the URO authorized to decide whether Claimant remained disabled from the work-injury. 34 Pa. Code The URO simply determined, from a medical standpoint, that the course of treatment undertaken by the providers at issue was reasonable and necessary to treat the injury in question. That determination did not bear on the issue of whether the S1 radiculopathy, disc degeneration, disc protrusion, marginal osteophytosis and mild disc bulge at L4-5 were related to the work incident or whether Claimant remained disabled from the work-related injury. The URO s conclusion that some of the disputed treatment was reasonable and necessary was unrelated to a determination that Claimant s injuries were work-related as opposed to degenerative or due to non-work related factors. 9

10 That issue was strictly for the WCJ to determine in the termination proceedings after considering, among other things, conflicting medical expert testimony. In a termination proceeding, the employer bears the burden of proving that the claimant fully recovered from his work injury and has no remaining disability, or that any remaining disability is no longer related to the work injury. Campbell v. Workers' Compensation Appeal Board (Antietam Valley Animal Hospital), 705 A.2d 503, (Pa. Cmwlth. 1998). Here, WCJ Craig considered the testimony of Dr. Sachs and Dr. Stark who each offered an opinion of the extent of Claimant s work-related injury and whether he remained disabled. to Consolidate. WCJ Craig did not err when she denied Claimant s renewed Motion II. Closure and Certification of the Record Along these same lines, Claimant contends that WCJ Craig failed to permit the parties to certify the evidentiary record as required by the Special Rules of Administrative Practice and Procedure. He contends that if WCJ Craig provided the parties the opportunity to be heard regarding the status of the record or if she had certified the record before she issued her decision, she would have realized that the issues raised in the UR Petitions directly impacted the issues involved in the Termination/Suspension Petitions. Again, Claimant s argument is based on the unfounded assumption that WCJ Craig would have realized that the issues raised in the UR Petitions 10

11 directly impacted the issues in the Termination/Suspension Petitions. Neither this Court nor Claimant may speculate as to what a WCJ may or may not have determined in a hypothetical set of circumstances. Again, as this Court has already concluded, a URO s finding that certain treatment is reasonable and necessary does not compel the WCJ to conclude that a claimant remains disabled from a workrelated injury. For example, physical therapy may be found to be not reasonable and necessary because a claimant had reached maximum benefit from his therapy. That would not necessarily mean the claimant is no longer disabled. See Gary v. Workers Compensation Appeal Board (Philadelphia School Dist.), 18 A.3d 1282 (Pa. Cmwlth. 2011). By the same token, an opinion that treatment is reasonable and necessary does not necessarily mean that the treatment was for a work-related injury. Simply, findings in a UR Petition proceeding do not control the result of a Termination Petition. Claimant has failed to demonstrate that the WCJ s alleged failure to certify the record resulted in any type of reversible error. This issue is also without merit. III. Reasoned Decision Next, Claimant contends that WCJ Craig s findings with respect to Employer s Termination Petition were not supported by substantial evidence and that her Decision with respect to that petition was not reasoned. 11

12 Section 422(a) of the Workers Compensation Act (Act) 2 provides that parties in a workers compensation case are entitled to a reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole. 77 P.S Our Supreme Court has held that a reasoned decision is no more and no less than one which allows for adequate review by the Board without further elucidation and if it allows for adequate review by the appellate courts under applicable review standards. Daniels v. Workers Compensation Appeal Board (Tristate Transp.), 574 Pa. 61, 76, 828 A.2d 1043, 1052 (2003). A review of WCJ Craig s Decision reveals that she complied with the current standard of the law and rendered a decision based upon substantial, competent evidence in the form of testimony and credibility determinations. WCJ Craig explained the reasons for rejecting or discrediting competent evidence. Claimant contends, however, that WCJ Craig s decision was not reasoned because she was not the one to observe his conduct and demeanor. Claimant has cited no case law which requires a WCJ to utilize personal observation as a prerequisite to a rendition of a credibility determination. While the law permits a WCJ to use a demeanor-based assessment to render a credibility determination, a WCJ may still issue a reasoned decision based upon deposition testimony so long as there is an actual objective basis for her findings. Daniels, 574 Pa. at 78, 828 A.2d at In Finding of Fact 13 WCJ Craig noted inconsistencies in Claimant s testimony. First, he described his pain as agonizing yet his only pain medication 2 Act of June 2, 1915, P.L. 736, as amended. 12

13 consisted of an anti-inflammatory. Second, Claimant stated that he was unable to return to work, but he admitted that he could wash dishes, vacuum, and do the laundry, which required using his basement steps. WCJ Craig specifically found Claimant not to be credible with respect to whether he was able to return to his preinjury job. WCJ Craig also observed the video surveillance of Claimant and noted in Finding of Fact 11 that the surveillance evidence did not depict someone who was experiencing agonizing pain or pain described by Dr. Sachs. The WCJ also found that the video tape discredited Claimant s testimony that he was only able to walk less than a quarter mile at a time. WCJ Craig s Decision provided ample basis for this Court to determine the reasons for the WCJ s credibility determinations and to conduct this Court s appellate review. Lanbie v. Workers Compensation Appeal Board (Curry Lumber), 736 A.2d 67 (Pa. Cmwlth. 1999). Next, Claimant contends that WCJ Craig s Decision was not reasoned because several of her findings of fact were not supported by substantial evidence. Specifically, Claimant argues that WCJ Craig s acceptance of Dr. Sachs opinion was not supported by substantial evidence. He contends that WCJ Craig incorrectly found that Dr. Sachs examination of Claimant was within normal limits. Again, this Court must disagree. In finding of Fact 12, WCJ Craig found Dr. Sachs opinion of a relatively normal examination supported by Claimant s denial of: 13

14 any numbness or weakness, and by the physical examinations findings of normal muscle strength, symmetrical reflexes and symmetrical girth measurements above and below the knee, intact sensory testing, no tenderness, atrophy or wasting and sitting root and straight leg raising tests that did not result in the positive response of pain radiating down the legs below the knee. WCJ Decision, February 3, 2010, at 6. As required by law, WCJ Craig more than adequately explained her reasons for accepting Dr. Sachs testimony. The record as a whole supports the WCJ s findings. Greenwich Collieries v. Workers Compensation Appeal Board (Buck), 664 A.2d 703 (Pa. Cmwlth. 1995). Claimant next argues that WCJ Craig s rejection of Dr. Stark s opinion was inconsistent with the record. WCJ Craig found an EMG impression of right S-1 radiculopathy while finding that Dr. Stark testified that claimant had no sensory or motor deficits on examinations and that the MRI studies were normal in that area. WCJ Decision, Finding of Fact 5(h) at 4. From what this Court can glean, Claimant apparently argues that WCJ Craig s characterization of a normal MRI is contradicted by the EMG study. However, Dr. Stark himself specifically admitted on cross-examination that the EMG study was positive for an S1 radiculopathy, while the MRI s were all normal in that area. Dr. Stark Deposition at 24; R.R. at 98a. Accordingly, Claimant has failed to demonstrate that WCJ Craig s Decision was not reasoned or supported by substantial evidence. 14

15 IV. Mootness In his last issue, Claimant contends that WCJ Craig erred when she dismissed his UR Petitions as moot. As a general rule, an actual case or controversy must exist at all stages of the judicial process. Warmkessel v. Heffner, 17 A.3d 408 (Pa. Super. 2011). An issue is moot when a determination is sought on a matter which, when rendered, will not have any practical effect on the existing controversy. Chruby v. Department of Corrections, 4 A.3d 764 (Pa. Cmwlth. 2010). In Finding of Fact 23, WCJ Craig determined the UR Petitions were moot because [t]he Petitions concern treatment rendered by various providers in 2009 [h]aving previously determined that claimant was fully recovered from his work injury as of 2008 and that, therefore, no treatment after that date could be causally related to the work injury. WCJ Craig s Decision, March 8, 2010, Finding of Fact 23 at 3. There was no error committed. The WCJ found Claimant was fully recovered and terminated benefits as of June 20, All UR Petitions involved medical treatment after July 23, Therefore, the question of whether treatment rendered after the termination date could be considered causally related to the work injury was moot. City of Philadelphia v. Workers Compensation Appeal Board (Smith), 860 A.2d 215 (Pa. Cmwlth. 2004) (If Employer succeeds in having its termination petition granted, its utilization review petition will be moot). 15

16 The Order of the Board is affirmed. BERNARD L. McGINLEY, Judge 16

17 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Lonnie Hamilton, : Petitioner : : v. : : Workers' Compensation Appeal : Board (The School District of : Philadelphia), : No C.D Respondent : O R D E R AND NOW, this 11th day of June, 2012, the Order of the Workers Compensation Appeal Board in the above-captioned matter is hereby affirmed. BERNARD L. McGINLEY, Judge