Opinion
No. 1803 C.D. 2011
06-04-2012
David E. Hale, Petitioner v. Workers' Compensation Appeal Board (Fleming Companies), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
This appeal involves eight petitions under the Workers' Compensation Act (Act). David E. Hale (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed an order of a Workers' Compensation Judge (WCJ) that granted four petitions for review of utilization review determinations (UR petitions) in favor of Fleming Companies (Employer). The WCJ also granted Claimant's review petition in part and expanded the description of the injury. In addition, the WCJ denied Employer's modification petition and Claimant's two penalty petitions related to the UR proceedings. Claimant presents five primary issues (and numerous sub-issues) for our review. For the reasons that follow, we affirm.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
This case was initially assigned to WCJ Christina Tarantelli. When WCJ Tarantelli became unavailable, the case was reassigned to WCJ Pamela L. Briston, who authored a decision and order.
I. Background
A. Injury
In June 1995, Claimant sustained a work injury when he twisted his lower back while lifting two cases of meat weighing about 70 or 80 pounds. Thereafter, Employer issued a notice of compensation payable (NCP), which described the injury as a sprain or strain of the lower back and legs. In November 1997, Claimant had surgery; he underwent an anterior lumbar discectomy and inter-body fusion. Claimant worked light duty from 1998 to 2000.
Thereafter, a supplemental agreement recognized that Claimant's disability recurred in February 2000. The agreement described the injury as a low back disc injury. Reproduced Record (R.R.) at 521a. This is the description of injury that Claimant later challenged.
In January 2004, Claimant began treating with Dr. Hugh E. Palmer (Claimant's Physician), who is board certified in family medicine. He initially diagnosed Claimant's condition as chronic pain syndrome secondary to failed lumbar fusion and depression secondary to chronic pain. Claimant's Physician prescribed medications including Neurontin and Oxycontin for pain, and Zoloft for depression.
B. Wheelchair/Assistive Devices
In due course, Claimant's Physician prescribed a motorized wheelchair, a wheelchair van lift (van lift) and a wheelchair ramp from the house to the driveway (ramp). The wheelchair would get Claimant out of the house, which would help with his mobility, social interaction and depression. After a dispute between the parties developed over the requirements for the ramp, Claimant's Physician alternatively prescribed a platform lift for the house (platform lift).
Thereafter, the parties requested UR determinations regarding the reasonableness and necessity of Claimant's medications, the motorized wheelchair, the van lift, the ramp, and the platform lift. Ultimately, the UR requests were assigned to four family practitioners. Dr. John F. Reinhardt found Claimant's medications and the motorized wheelchair to be a reasonable and necessary part of treatment. Dr. Robert A. Cohen found the van lift and the ramp to be reasonable and necessary. Dr. Louis J. Gringeri found a platform lift for the van to be reasonable and necessary. However, Dr. Michael A. Ziev found Claimant had no need for a platform lift because he had no need for a wheelchair. Thus, Dr. Ziev found the platform lift unreasonable and unnecessary.
C. Petitions
Beginning in 2005, the parties filed multiple petitions that were assigned to the WCJ. Employer filed UR petitions seeking review of the UR determinations regarding the motorized wheelchair, van lift and ramp. Claimant filed a UR petition seeking review of the adverse determination regarding the platform lift.
In addition, Claimant filed a penalty petition averring Employer violated the Act by failing to timely pay Scomed Medical Supply, Inc. (Scomed), the wheelchair provider. Claimant also filed a second penalty petition averring Employer violated the Act by failing to abide by the UR determination that found the van lift and a ramp to be reasonable and necessary.
In addition, Employer filed a modification petition averring it offered Claimant a specific light duty position within his medical restrictions as of September 12, 2005. Claimant filed an answer denying the material allegations.
Also, Claimant filed a petition to review compensation benefits (review petition) averring an incorrect description of injury in the supplemental agreement.
D. WCJ's Decision
Before the WCJ, Claimant testified on his own behalf and presented medical testimony from his Physician. Employer presented medical testimony from Dr. Walter C. Peppelman (IME Physician), an orthopedic surgeon, who performed independent medical examinations on three occasions. Employer also presented testimony from several witnesses regarding the light duty work offered Claimant. Further, Employer presented testimony from its workers' compensation carrier's claims adjuster, Isabelle Stevenson (Claims Adjuster) regarding several factual issues.
In her decision, the WCJ denied Employer's modification petition for several reasons. The WCJ accepted as credible Claimant's testimony that he could not perform the light duty position offered due to his medication, his vocational abilities and his inability to drive to the work location on a regular basis. WCJ Op., 11/10/09, Finding of Fact (F.F.) No. 13. In making this finding, the WCJ accepted the testimony of Claimant's Physician regarding Claimant's inability to perform the light duty position because his medications make him drowsy. F.F. No. 13(ii). Further, the WCJ did not find the offer of employment to be genuine; neither of Employer's vocational witnesses met in person with Claimant to determine if he could perform the work. F.F. No. 13(iv).
In Finding of Fact No. 14, the WCJ found Employer met its burden of proof in the UR petition regarding the motorized wheelchair. The WCJ accepted IME Physician's opinion finding the wheelchair unreasonable and unnecessary. F.F. No. 14(i), (iii). IME Physician further opined use of a wheelchair would decrease Claimant's functional abilities. F.F. No. 14(ii). The WCJ also determined, based on "all evidence of record" that Claimant failed to meet his burden of proof in his penalty petition regarding the timeliness of Employer's payment for the wheelchair. F.F. No. 15. In particular, the WCJ found the wheelchair "is actually not reasonable or necessary." Id. "Therefore, [Employer] has not violated any provisions of the Act." Id.
As to Claimant's review petition, the WCJ accepted his Physician's diagnosis of "failed back syndrome, chronic pain and post traumatic arthritis." F.F. No. 16(i). The WCJ also accepted Claimant's Physician's diagnosis of depression causally related to the work injury and continuing problems. F.F. No. 16(iii).
However, the WCJ accepted IME Physician's opinion that Claimant does not suffer from reflex sympathetic dystrophy (RSD). F.F. No. 16(ii). IME Physician did not find RSD during his three examinations of Claimant. Id. The WCJ rejected Claimant's Physician's diagnosis of RSD based only on chronic severe pain following the 1995 injury. Id. The WCJ noted Claimant's Physician's comments regarding discoloration and complaints of leg pain, but did not find his RSD diagnosis credible. Id.
As a result, the WCJ amended the description of Claimant's work injury to read "failed back [surgery] syndrome, chronic pain, post-traumatic arthritis and depression." Concl. of Law No. 4.
The WCJ also found Employer met its UR petition burden of proving the van lift and ramp were unreasonable and unnecessary. F.F. No. 17. The WCJ again relied on IME Physician's opinion that Claimant would become more sedentary and less functional with a wheelchair. Id. The WCJ also accepted IME's Physician's opinion that Claimant had a normal neurological examination and that he exhibited signs of symptom magnification. Id.
Next, the WCJ found that Claimant failed to meet his burden of proof in the penalty petition regarding Claimant's Physician's prescriptions for the van lift and wheelchair ramp to the driveway. F.F. No. 18. Again, the WCJ referenced IME Physician's opinion that the wheelchair and other assistive devices would render Claimant less functional. Id. For the same reason, the WCJ found Employer met its UR petition burden of proving the platform lift unreasonable and unnecessary. F.F. No. 19.
Finally, based upon IME Physician's opinions, the WCJ found Employer presented a reasonable contest as to all petitions. F.F. No. 20.
Initially, Claimant and Employer each appealed to the Board. Employer, however, withdrew its appeal. In a comprehensive decision authored by Commissioner McDermott, the Board affirmed the WCJ's order. Claimant petitions for review.
This Court's review is limited to determining whether the WCJ's findings of fact were supported by substantial evidence, whether an error of law was committed or whether constitutional rights were violated. Dep't of Transp. v. Workers' Comp. Appeal Bd. (Clippinger), 38 A.3d 1037 (Pa. Cmwlth. 2011).
II. Issues
Claimant presents five issues for our review. He contends the Board erred in affirming the WCJ's decision for the following reasons: in finding Employer sustained its burden of proof in the UR petitions, the WCJ failed to issue a reasoned decision and made findings of fact unsupported by the record; the WCJ erred in failing to order Employer to purchase a wheelchair accessible van, which would qualify as an orthopedic appliance under the Act; the WCJ erred in denying Claimant's two penalty petitions where substantial evidence clearly showed that Employer violated the Act by failing to pay for reasonable and necessary medical expenses and by failing to abide by the initial UR determinations; the WCJ erred by failing to include RSD in the expanded injury description; and, the WCJ erred in denying an award of unreasonable contest counsel fees where Employer failed to establish a reasonable basis for its contest of the modification, review and penalty petitions.
III. Discussion
A. UR Petitions
1. Generally
Claimant first contends that in finding Employer sustained its burden of proof in each of the UR petitions, the WCJ failed to issue a reasoned decision and made findings of fact unsupported by substantial evidence. He argues the record clearly shows that all prescriptions and treatment under review were reasonable and necessary. To that end, Claimant asserts that in accepting IME Physician's testimony and opinions as more credible than those of Claimant's Physician and the UR physicians, the WCJ failed to issue a reasoned decision as required by Section 422(a) of the Act.
"Substantial evidence is such relevant evidence as a reasonable person might accept as adequate to support a conclusion." Waldameer Park, Inc. v. Workers' Comp. Appeal Bd. (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003). "In performing a substantial evidence analysis, this court must view the evidence in a light most favorable to the party who prevailed before the factfinder." Id. "Moreover, we are to draw all reasonable inferences which are deducible from the evidence in support of the factfinder's decision in favor of that prevailing party." Id. "It does not matter if there is evidence in the record supporting findings contrary to those made by the WCJ; the pertinent inquiry is whether the evidence supports the WCJ's findings." 3D Trucking Co., Inc. v. Workers' Comp. Appeal Bd. (Fine & Anthony Holdings Int'l), 921 A.2d 1281, 1288 (Pa. Cmwlth. 2007). Also, it is solely for the WCJ, as factfinder, to assess credibility and resolve evidentiary conflicts. Waldameer Park. As such, the WCJ may reject the testimony of any witness, in whole or in part. Id.
Section 422(a) of the Act requires a WCJ to issue a "reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole which clearly and concisely states and explains the rationale for the decisions ...." 77 P.S. §834. "A decision is 'reasoned' if it allows for adequate review by the appellate courts under the applicable review standards." Pryor v. Workers' Comp. Appeal Bd. (Colin Serv. Sys.), 923 A.2d 1197, 1202 (Pa. Cmwlth. 2006). Section 422(a) requires some explanation of credibility determinations regarding conflicting deposition testimony; a WCJ must articulate an objective basis for her credibility determinations. Daniels v. Workers' Comp. Appeal Bd. (Tristate Transp.), 574 Pa. 61, 828 A.2d 1043 (2003); Amandeo v. Workers' Comp. Appeal Bd. (Conagra Foods), 37 A.3d 72 (Pa. Cmwlth. 2012); Dorsey v. Workers' Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191 (Pa. Cmwlth. 2006). Thus, a summary of testimony, by itself, would not satisfy the reasoned decision requirement. Amandeo. However, there are countless objective factors which may support a WCJ's credibility determinations. Daniels; Dorsey. Further, the reasoned decision requirement does not require the WCJ to discuss all evidence presented. Dorsey. Rather, the WCJ must make the findings necessary to resolve the issues presented by the evidence and that are relevant to the decision. Id.
If an employer disputes the reasonableness and necessity of a claimant's medical treatment, it can submit the bills for a utilization review pursuant to Section 306(f.1)(6) of the Act, 77 P.S. §531(6). CVA, Inc. v. Workers' Comp. Appeal Bd. (Riley), 29 A.3d 1224 (Pa. Cmwlth. 2011); Hough v. Workers' Comp. Appeal Bd. (AC&T Cos.), 928 A.2d 1173 (Pa. Cmwlth. 2007). The utilization review process is the sole method for determining if the disputed treatment is reasonable and necessary. Riley. Unless these medicals bills have gone through utilization review, the WCJ lacks jurisdiction to rule on their reasonableness and necessity in a UR petition. Id.
Further, the claimant has no burden of proof in the utilization review process. Id. (citing Topps Chewing Gum v. Workers' Comp. Appeal Bd. (Wickizer), 710 A.2d 1256 (Pa. Cmwlth. 1998)). Rather, the employer has the burden of proof throughout the entire UR proceeding to show the disputed treatment is not reasonable and necessary. Id.
Here, Claimant maintains the WCJ, in determining Employer met its burden of proof in all four UR petitions, failed to issue a reasoned decision and failed to explain her rationale for accepting the opinions of IME Physician over those of Claimant's Physician and the UR physicians regarding the motorized wheelchair, van lift and ramp. We disagree.
2. Wheelchair
In Finding of Fact No. 14, the WCJ found that Employer met its burden of proof in the UR petition "regarding the reasonableness and necessity of a motorized wheel chair." F.F. No. 14. The WCJ further stated, "In so finding, I accept the opinions of [IME Physician] as more credible than the opinions of [Claimant's Physician] on this particular issue. F.F. No. 14(i). The WCJ then stated the following objective grounds for her credibility determination:
ii. I accept the opinions of [IME Physician] that this will further limit [Claimant's] ability to move around as [Claimant] will be even more restrictive in his movements. I accept the testimony of [IME Physician] that this device would decrease even further [Claimant's] functional abilities. I note that [Employer] has already provided [Claimant] with a motorized wheelchair. However, I accept the opinions of [IME Physician] as
more credible than the opinions of Dr. Reinhardt[] and [Claimant's Physician] regarding the need for the motorized wheelchair.F.F. No. 14(ii) and (iii) (footnote added).
iii. I note that [IME Physician] credibly explained that [Claimant] has a solid fusion. He further noted that while [Claimant] had difficulty walking in the examining room, he observed him walking to his car where his gait improved significantly.
We note the weight and credibility of a UR physician's report, as with any other evidence, is for the WCJ as fact finder. Sweigart v. Workers' Comp. Appeal Bd. (Burnham Corp.), 920 A.2d 962 (Pa. Cmwlth. 2007).
Clearly, the WCJ stated an objective basis for her credibility determinations. She credited IME Physician's opinion that Claimant did not need a wheelchair, motorized or otherwise; rather, he had the upper and lower body strength to walk. A wheelchair would only decrease Claimant's functional abilities; this is not in his best interest. The WCJ accepted IME Physician's opinion on this issue over the contrary opinions of Claimant's Physician and the UR physicians. Therefore, the WCJ's determination regarding the reasonableness and necessity of Claimant's Physician's prescription for the wheelchair meets the reasoned decision requirements of Section 422(a) of the Act. Daniels v. Workers' Comp. Appeal Bd. (Tristate Transp.), 574 Pa. 61, 828 A.2d 1043 (2003); Amandeo v. Workers' Comp. Appeal Bd. (Conagra Foods), 37 A.3d 72 (Pa. Cmwlth. 2012); Dorsey v. Workers' Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191 (Pa. Cmwlth. 2006). Although Claimant disagrees with the WCJ's credibility determinations, such disagreement is not a basis for setting them aside. Hall v. Workers' Comp. Appeal Bd. (Am. Serv. Grp.), 3 A.3d 734 (Pa. Cmwlth. 2010).
Moreover, Finding of Fact No. 14 is supported by substantial evidence. On direct examination, IME Physician testified as follows:
Q. In [Claimant's] case, again, based upon your evaluations of him, do you believe that [Claimant] still has sufficient ability to ambulate or sufficient use of both of his upper and lower extremities to not require a motorized wheelchair?Dep. of Walter C. Peppelman, Jr., D.O., 04/23/07 (Peppelman Dep.) at 16-18; R.R. at 313a-15a. Because the WCJ stated an objective basis, supported by substantial evidence, for finding the wheelchair unreasonable and unnecessary for Claimant's treatment of his work injury, the WCJ's findings will not be disturbed. Daniels; Dorsey; Minicozzi v. Workers' Comp. Appeal Bd. (Indus. Metal Plating, Inc.), 873 A.2d 25 (Pa. Cmwlth. 2005).
A. Yes.
Q. Thank you. Now, Doctor, along with the prescription for a motorized wheelchair, [Claimant's Physician] also prescribed that [Claimant] should have ramps installed in his home and should have a lift installed in a motor vehicle to allow for the wheelchair to be able to be lifted into and out of the vehicle. If I were to ask you the same questions that I asked you about the need for a motorized wheelchair with respect to the ramp and the lift, would you provide me with the same reasons, the same answers as it applies to lifts and ramps?
A. Actually even more so. ... Like I said, you know, it's going to end up with this guy in a Lazy-Boy recliner and never get out of it. This is not really in the best interest for the patient. The patient has no anatomic abnormalities that would require use of even a wheelchair.
Q. Motorized or otherwise?
A. Motorized or otherwise. This patient was already observed walking outside fine. This patient has no impairments which require this. This is not somebody who has a spinal cord tumor or is paralyzed or is quadriplegic. This is a guy who had a simple disc operation who has no significant anatomic abnormalities to even explain his subjective complaints. All we are doing I think unfortunately is providing a disabling aspect to this patient's treatment by the use of advancing medications and even decreasing his activity levels.
3. Van Lift, Ramp, Platform Lift
For the same reasons, the WCJ's determinations in Findings of Fact Nos. 17 and 19 regarding the reasonableness and necessity of the van lift, ramp and the house lift also meet the Act's reasoned decision requirement and are supported by substantial evidence. The WCJ credited IME Physician's testimony that Claimant did not need a wheelchair and that these devices would render him less functional. F.F. Nos. 17, 19.
4. Inconsistent Findings
Claimant further contends the WCJ's findings are inconsistent and problematic because she credited the opinions of Claimant's Physician with respect to the modification petition, but also credited IME Physician's opinions regarding the wheelchair and other assistive devices. We disagree.
It is solely within the province of the WCJ, as fact finder, to resolve issues of credibility and evidentiary weight. Minicozzi. The WCJ may accept or reject the testimony of any witness, in whole or in part, including the uncontested testimony of the claimant or any other witness. Id. A reviewing court's role in a workers' compensation appeal does not include reweighing the evidence or second guessing the WCJ's credibility determinations. Id.
Here, with regard to the modification petition, the WCJ found Claimant could not perform the position offered because his medications make him drowsy. F.F. No. 13(i) and (ii). The WCJ based these findings on testimony from both Claimant and his treating physician. Id. The WCJ may accept Claimant's Physician's testimony in part and reject it in part. Minicozzi.
Nevertheless, the WCJ also found, based on IME Physician's testimony, that Claimant had a solid fusion and could walk. F.F. No. 14(iii). The WCJ may accept IME Physician's testimony on these factual issues. Minicozzi. The WCJ's findings are not inconsistent and do not run afoul of the reasoned decision requirement. Id. Consequently, we will not disturb the WCJ's findings regarding the reasonableness and necessity of the motorized wheelchair and the other assistive devices.
B. New Van
In this argument, Claimant contends the WCJ erred in failing to order Employer to purchase a wheelchair accessible van, which would qualify as an orthopedic appliance under Section 306(f.1)(1)(ii) of the Act, 77 P.S. § 53 (employer shall provide payment for medicines and supplies, hospital treatment, services and supplies, and orthopedic appliances and prostheses causally related to work injury). In support, Claimant cites Griffiths v. Workers' Compensation Appeal Board (Seven Stars Farm, Inc.), 596 Pa. 317, 943 A.2d 242 (2008) (quadriplegic claimant may be entitled to a wheelchair accessible van because the van may constitute an "orthopedic appliance" under Section 306(f.1)(1)(ii) of the Act).
Claimant maintains that the restrictions on his mobility were caused by his work injury, and a modified van directly addresses and would help remediate the harm from the work injury. However, the record shows Claimant could not get his van retrofitted with the needed modifications because of his van's age and mileage. Therefore, the WCJ should have ordered Employer to purchase a new van.
Employer counters there is no pleading of record requesting that the WCJ award Claimant a wheelchair accessible van. Surely, Employer asserts, given the holding in Griffiths, Claimant would need to plead and prove that under the circumstances here, a van qualifies as an orthopedic appliance under Section 306(f.1)(1)(ii) of the Act. Therefore, Employer urges, Claimant waived this issue. See Dobransky v. Workers' Comp. Appeal Bd. (Cont'l Baking Co.), 701 A.2d 597 (Pa. Cmwlth. 1997) (waiver doctrine applies in workers' compensation proceedings, issues not raised before the WCJ are waived).
Alternatively, Employer argues Griffiths is factually distinguishable and therefore inapplicable. Unlike the quadriplegic claimant in Griffiths, Claimant is neither quadriplegic nor paraplegic. Claimant drives himself to hearings, to his doctors' appointments, to the store, and on errands for his children.
We agree with Employer on both counts. The UR determinations and the UR petitions filed before the WCJ did not address the reasonableness and necessity of a replacement van. Further, the WCJ made no findings on that issue. As the Board observed, "a new van was not prescribed and was not the subject of the instant UR requests." Bd. Op., 08/24/11 at 11, n.6. Therefore, we agree with Employer that Claimant failed to preserve this issue for review. Dobransky.
Regardless, the WCJ accepted IME Physician's opinion that Claimant's had successful fusion surgery and can walk. F.F. Nos. 14(i),(ii),(iii). Claimant does not need a wheelchair, van lift, driveway ramp, or platform lift for mobility. F.F. Nos. 17, 19. Therefore, a wheelchair accessible van is logically neither reasonable nor necessary for Claimant's mobility. Consequently, Griffiths is inapplicable.
C. Penalty Petitions
1. Claimant's Argument
Claimant next argues the WCJ erred in denying his two penalty petitions where the evidence clearly showed Employer violated the Act by failing to abide by the initial UR determinations. More specifically, Claimant asserts the WCJ clearly erred in failing to award 50% penalties where the record shows Employer unilaterally suspended payment of Claimant's medical expenses despite UR determinations finding the wheelchair, van lift and ramp reasonable and necessary. To that end, Claimant asserts Employer's counsel admitted at a 2007 hearing that it did not pay for the van lift and ramp because they were bargaining chips in the mediation process. R.R. at 294a. If Employer paid for these items, it would have lost all its leverage. Id.
In June 2005, Dr. Reinhardt issued a UR determination finding Claimant's Physician's prescription for the motorized wheelchair, and all other treatment (including the prescriptions for Neurontin, Oxycontin and Zoloft) to be reasonable and necessary. See R.R. at 463a-73a. Claimant acknowledges Employer did provide him with a motorized wheelchair. However, Claimant asserts, Employer refused to pay for it in a timely manner. As of August 2005, the balance on the wheelchair remained at $12,627.28. Id. at 253a-54a. In December 2006, Dr. Cohen issued a UR determination finding Claimant's Physician's prescriptions for a van lift and ramp to be reasonable and necessary. Id. at 474a-80a. Claimant maintains Employer never complied with the UR determination regarding the van lift and ramp.
Given these circumstances, Claimant argues Employer's unreasonable and excessive delays in paying for the wheelchair, and its failure to pay for the van lift and ramp, warranted imposition of 50% penalties under Section 435(d)(i) of the Act. Thus, Claimant urges, the WCJ clearly erred or abused her discretion in denying his penalty petitions.
Added by the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. §991(d)(1).
2. Analysis
Pursuant to Section 435(d) of the Act, employers and insurers may be penalized a sum not exceeding 10% of the amount awarded for a violation of the Act or its rules and regulations. 77 P.S. §991(d); Dep't of Transp. v. Workers' Comp. Appeal Bd. (Clippinger), 38 A.3d 1037 (Pa. Cmwlth. 2011). That penalty may be increased to 50% in cases of unreasonable or excessive delays. Id.
In order for an appropriate imposition of penalties, a violation of the Act, or its rules and regulations must appear on the record. Clippinger. The imposition of a penalty, however, is at the discretion of the WCJ. Id. Therefore, the imposition of a penalty is not required even where a violation of the Act is apparent. Id. "Because the assessment of penalties, as well as the amount of penalties imposed, is discretionary, we will not overturn a penalty on appeal absent an abuse of discretion." Id., 38 A.3d at 1047 (citation omitted).
We also reaffirmed in Clippinger that an employer's unjustified, unilateral withholding of medical expenses violates the Act and triggers the penalty provision. Id. To that end, the employer's right to suspend payment by invoking the UR process ends when there is a UR determination that the challenged treatment is reasonable and necessary. Id. Filing a UR petition before a WCJ does not further suspend the obligation to pay at that point. Id.
Here, however, Employer's Claims Adjuster testified that Scomed, the wheelchair provider, initially billed Employer the wrong amount for the wheelchair by mistake. See R.R. at 444a-45a. Rather than submitting a corrected bill, Scomed immediately filed an application for fee review under Section 306(f.1)(5) of the Act, 77 P.S. §991(5). Jurisdiction over fee review lies with the Bureau of Workers' Compensation and its hearing examiners, not with a WCJ. Enterprise Rent-A-Car v. Workers' Comp. Appeal Bd. (Clabaugh), 934 A.2d 124 (Pa. Cmwlth. 2007). Following resolution of the fee review petition in August 2006, Employer paid the bill for the wheelchair. R.R. at 44a-45a. Given these circumstances, we discern no basis for disturbing the WCJ's determination in Finding of Fact No. 15 that Employer did not violate the Act with regard to timeliness of payment for the wheelchair. Clippinger.
In Finding of Fact No. 17, the WCJ denied Claimant's penalty petition alleging Employer violated the Act by failing to abide by the initial UR determination that found Claimant's Physician's prescription for a van lift and ramp to be reasonable and necessary.
Regarding the van lift, Employer asserts the company Claimant chose to convert his van, Mobility Independent Transportation Systems, Inc. (Van Contractor), would not install the device because Claimant's van was too old and had excessive mileage. See R.R. at 454a-55a. Accordingly, Van Contractor included quotes for replacement vans. Id. at 456a-57a. Claimant, however, did not obtain medical or UR approval for a replacement van.
With regard to the ramp, Employer asserts Claimant obtained a quote for the ramp, but it was never constructed. Concerns arose as to whether the ramp met ADA standards and whether a permit issued for its construction. Employer further asserts Claimant presented no evidence that the proposed ramp met ADA standards.
See Americans with Disabilities Act of 1990, 42 U.S.C. §§12131-12300.
Again, given the facts here, we discern no basis for disturbing the WCJ's determination in Finding of Fact No. 18 that Employer did not violate the Act with regard to payment for the van lift. Van Contractor did not modify Claimant's van because of its age and mileage. Claimant had no UR approval for a replacement van. Consequently, Employer did not act inconsistently with the UR determination for the van lift.
The circumstances surrounding the ramp, however, are murky. Claimant sent Employer an estimate from Gohn and Barto, Inc. (Ramp Contractor) for the ramp. See R.R. at 234a-35a. Although the parties dispute whether the ramp needed to meet ADA standards, neither party established this fact one way or the other. Nonetheless, Ramp Contractor never constructed the ramp.
Given the unique circumstances in this case, including the fact that Employer ultimately prevailed in all four UR petitions regarding the wheelchair, van lift, ramp and platform lift, we discern no abuse of discretion by the WCJ in denying Claimant's penalty petition regarding the initial UR determination approving the van lift and ramp. Clippinger.
D. Description of Injury
Claimant next argues the WCJ erred by failing to include a diagnosis of RSD in the expanded description of injury. In so doing, Claimant asserts, the WCJ failed to issue a reasoned decision on the issue and made inconsistent findings.
As noted above, the WCJ expanded the description of Claimant's injury to include failed back syndrome, chronic pain and post-traumatic arthritis. F.F. No. 16(i). The WCJ also found Claimant established that he suffers from depression causally related to his work injury. F.F. No. 16(iii). However, with respect to Claimant's Physician's diagnosis of RSD, the WCJ found:
I do not find that [Claimant] has met his burden of proof regarding the diagnosis of RSD. In this regard, I accept the opinions of [IME Physician] that [Claimant] does not suffer from RSD. I accept his opinion that he has never seen RSD during the three times he has evaluated [Claimant]. I do not find [Claimant's Physician's] opinion credible of the diagnosis of RSD based only on chronic severe pain following trauma for the injury of 1995. I note that [Claimant's Physician] commented on [Claimant's] discoloration and pain complaints, but I do not find him credible that [Claimant] suffers from RSD.F.F. No. 16(ii).
Initially, we again stress it is solely for the WCJ, as fact finder, to assess credibility and resolve evidentiary conflicts. Minicozzi. In so doing, the WCJ may reject the testimony of any witness, including a medical witness, in whole or in part. Id.
Here, the WCJ explained she credited IME Physician's testimony that Claimant does not suffer from RSD on the basis that IME Physician did not see RSD during his examinations of Claimant. F.F. No. 16(ii). In addition, the WCJ rejected Claimant's Physician's diagnosis of RSD "based only on chronic severe pain following trauma for the injury of 1995." Id.
IME Physician testified Claimant had no findings of RSD, a condition that is quite obvious. Peppelman Dep., 04/23/07 at 27; R.R. at 324a. However, this testimony is unclear as to whether IME Physician was referring to both Claimant's upper and lower extremities; it follows a discussion of Claimant's upper extremities. Nevertheless, IME Physician further testified, "My personal opinion is that this patient should be encouraged to walk as much as possible." Id.
To that end, IME Physician testified that as of his last examination, Claimant had no neurological abnormalities in his lower extremities. The opinion of a medical expert must be viewed as a whole. Casne v. Workers' Compensation Appeal Board (Stat Couriers, Inc.), 962 A.2d 14 (Pa. Cmwlth. 2008). IME Physician's testimony, viewed as whole, contradicts Claimant's Physician's diagnosis of RSD and therefore supports the WCJ's findings. Specifically, IME Physician stated:
The evaluation of his lower extremities revealed them to be neurologically -- he was intact with no notice of pain - no pain with motion of the legs, but also no evidence of any motor deficits in the lower extremities. There was no evidence of any muscular atrophy or any other problems.Peppelman Dep., 04/23/07 at 11; R.R. at 308a.
Again, the WCJ provided an objective basis for her credibility determinations. Further, the WCJ's finding that Claimant does not suffer from RSD is supported by competent medical evidence. The WCJ may accept or reject the testimony of a medical witness, in whole, or in part. Minicozzi.
Moreover, the WCJ's findings of a residual back injury, post traumatic arthritis and chronic pain following spinal fusion surgery are not inconsistent with a finding that Claimant does not have RSD in his lower extremities. In sum, Finding of Fact No. 16 does not violate the reasoned decision requirement in Section 422(a) of the Act. Daniels; Dorsey; Minicozzi.
E. Unreasonable Contest Counsel Fees
1. Argument
Claimant also contends the WCJ erred in failing to award counsel fees where Employer failed to sustain its burden of establishing a reasonable contest regarding the modification, review or penalty petitions. First, Claimant asserts the WCJ erred in finding Employer reasonably contested the modification petition because Employer failed to comply with the prompt written notice of ability to return to work requirement in 306(b)(3) of the Act. See Burrell v. Workers' Comp. Appeal Bd. (Phila. Gas Works), 849 A.2d 1282 (Pa. Cmwlth. 2004) (compliance with the prompt written notice requirements in 306(b)(3) is a threshold burden in a modification petition).
Whether to award unreasonable contest counsel fees is a question of law reviewable by the Board and this Court. Jordan v. Workers' Comp. Appeal Bd. (Phila. Newspapers, Inc.), 921 A.2d 27 (Pa. Cmwlth. 2007). "Section 440(a) of the Act, 77 P.S. §996(a), provides that where a claimant succeeds in a litigated case reasonable counsel fees are awarded against the employer, as a cost, unless the employer meets its burden of establishing facts sufficient to prove a reasonable basis for the contest." U.S. Steel Corp. v. Workers' Comp. Appeal Bd. (Luczki), 887 A.2d 817, 820 (Pa. Cmwlth. 2005). "A reasonable contest is established when medical evidence is conflicting or susceptible to contrary inferences, and there is an absence of evidence that an employer's contest is frivolous or filed to harass a claimant." Id. The employer bears the burden of proving a reasonable basis for contesting liability. Dep't of Corr. v. Workers' Comp. Appeal Bd. (Clark), 824 A.2d 1241 (Pa. Cmwlth. 2003). --------
Section 306(b)(3) provides that when an insurer receives medical evidence that a claimant is able to return to work, the insurer must provide prompt written notice to the claimant stating the following:
(i) The nature of the employe's physical condition or change of condition.77 P.S. §512(3).
(ii) That the employe has an obligation to look for available employment.
(iii) That proof of available employment opportunities may jeopardize the employe's right to receipt of ongoing benefits.
(iv) That the employe has the right to consult with an attorney in order to obtain evidence to challenge in the insurer's contentions.
Claimant asserts that Employer mailed him a notice of ability to return to work in February 2004, approximately five months after the date it received medical evidence that Claimant could return to full-time work with lifting restrictions. Claimant argues Employer's failure to provide this notice within a reasonable time renders the medical report stale evidence as a matter of law. See Melmark Home v. Workers' Comp. Appeal Bd. (Rosenberg), 946 A.2d 159, 163 (Pa. Cmwlth. 2007) (holding the prompt written notice language in Section 306(b)(3) requires an employer to provide a claimant notice of the medical evidence it received within a reasonable time after its receipt "lest the report itself becomes stale;" it also requires an employer to give notice to a claimant a reasonable time before the employer acts on the information).
Claimant further emphasizes that Claims Adjuster acknowledged she did not provide a copy of the notice to Claimant's counsel. He asserts this violates several administrative regulations requiring that notice to counsel be provided any time a written communication is to be furnished to the claimant. See 34 Pa. Code §131.11(c) (any notice or other written communication required to be furnished a party in a WCJ proceeding shall also be furnished to the party's attorney); 1 Pa. Code §31.26 (in administrative proceedings generally, a notice or other written communication furnished to client shall also be furnished to the client's attorney). Thus, Claimant urges, by failing to provide his counsel with the notice of ability to return to work, Employer fell short of its threshold burden to provide notice and therefore it could not have prevailed on the modification petition. See City of Phila. v. Workers' Comp. Appeal Bd. (Operacz), 706 A.2d 1292 (Pa. Cmwlth. 1998) (WCJ's failure to provide claimant's new counsel of record with a copy of the WCJ's decision after counsel entered appearance constituted a breakdown in the operation of the agency warranting the granting of nunc pro tunc appeal).
Claimant also contends the WCJ erred in failing to find an unreasonable contest on the penalty and review petitions. Employer forced Claimant to litigate the penalty petitions to conclusion despite failing to comply with the initial UR determinations approving the treatment at issue. As to the review petition, Claimant asserts Employer failed to submit a medical opinion contradicting Claimant's Physician's diagnosis of depression.
2. Analysis
"A reasonable contest is established where medical evidence is conflicting or susceptible to contrary inferences, and there is an absence of evidence that an employer's contest is frivolous or filed to harass a claimant." U.S. Steel Corp. v. Workers' Comp. Appeal Bd. (Luczki), 887 A.2d 817, 821 (Pa. Cmwlth. 2005). As discussed above, IME Physician testified that as of his September 2003 examination, Claimant had reached maximum medical improvement and could perform a full eight-hour a day job with lifting restrictions. F.F. No. 5; Peppelman Dep., 05/08/06, at 17-19; R.R. at 79a-81a. In February 2005, IME Physician again stated Claimant could perform a sedentary/light duty job with the ability to sit or stand on an as-needed basis. See F.F. No. 5; R.R. at 139a-42a.
Employer also presented vocational evidence that in September 2005, it offered Claimant a light duty position within IME Physician's restrictions. F.F. No. 3. In light of Employer's medical and vocational evidence, we conclude Employer presented a reasonable contest on its modification petition. Luczki.
In so doing, we specifically reject Claimant's contention that Employer failed to comply with the notice requirement in Section 306(b)(3) of the Act. The prompt written notice requirement does not reference a specific period of time. Melmark Home. "There is absolutely no reason why a claimant must be given a Notice of Ability to Return to Work immediately upon the employer's receipt of medical evidence that the claimant can perform some work, especially when the employer may choose not to do anything with the information." Id., 946 A.2d at 163 n.5. "Whether issuance of the notice is prompt depends not on a number of days but, rather, upon its impact upon a claimant." Id. at 164 (emphasis added).
Here, IME Physician examined Claimant in September 2003. Thereafter, in February 2004, Employer issued Claimant a notice of ability to return to work. See R.R. at 449a. Employer did not seek a modification of Claimant's benefits prior to September 2005. Thus, Employer's notice provided Claimant with a reasonable time to search for employment or take legal action. Melmark Home. Given these circumstances, we discern no adverse or prejudicial impact upon Claimant due to Employer's five-month delay in issuing the notice. Id.
Further, Claimant asserts no actual prejudice or adverse impact as a result of Employer's failure to provide his counsel with a copy of the notice. In Melmark Home, we noted the employer needed to establish when the notice was issued and whether the claimant or her counsel received it. Id., 946 A.2d at 164. Here, Claimant does not dispute that he received the notice in February 2004. Consequently, Claimant's reliance on Melmark Home is misplaced.
As to Claimant's review petition, he asserts he is entitled to counsel fees for an unreasonable contest because Employer failed to submit any medical evidence contradicting Claimant's Physician's diagnosis of depression causally related to the work injury. See F.F. No. 16(iii). We disagree. IME Physician opined that Claimant had a normal neurologic exam, a solid fusion and subjective complaints of pain related to his 1997 surgery. F.F. No. 5. Claimant also showed signs of symptom magnification. Id. Although IME Physician did not specifically comment on the depression diagnosis, his testimony is nonetheless susceptible of an inference that Claimant's pain symptoms, which caused his depression, were exaggerated and had no objective basis. Therefore, Employer's contest of the review petition raised genuinely disputed issues regarding Claimant's mental, as well as physical condition caused by the work injury. As such, the WCJ did not err in finding Employer's contest of Claimant's review petition entirely reasonable. Luczki.
Finally, we recognize that Claimant failed to prevail before the WCJ, either in whole in or part, on the penalty petitions or the UR proceedings underlying them. Consequently, Claimant is not entitled to an award of unreasonable contest counsel fees with respect to the penalty petitions. Jones v. Workers' Comp. Appeal Bd. (Steris Corp.), 874 A.2d 717 (Pa. Cmwlth. 2005).
IV. Conclusions
For the above reasons, we discern no error in the Board's order upholding the WCJ's decision. Accordingly, we affirm.
/s/_________
ROBERT SIMPSON, Judge Judge Brobson did not participate in the decision in this case. ORDER
AND NOW, this 4th day of June, 2012, for the reasons stated in the foregoing opinion, the order of the Workers' Compensation Appeal Board is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge