Opinion
No. 1241 C.D. 2013
02-20-2014
Richard Douglas, Petitioner v. Workers' Compensation Appeal Board (A & R Transportation, Inc.), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Claimant, Richard Douglas, petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of the Workers' Compensation Judge (WCJ) granting the petition to terminate his compensation benefits filed by Employer, A & R Transportation Inc., and denying the petition to review compensation benefits and petition for review of utilization review determination (UR petition) filed by Claimant. We affirm.
Claimant has not challenged the denial of his petition to review compensation benefits.
In January 2009, Claimant sustained a work-related neck and low-back strain when he slipped and fell on ice during the course of his employment with Employer as a truck driver. He received workers' compensation benefits pursuant to a Notice of Temporary Compensation Payable, which converted to a Notice of Compensation Payable. Subsequently, Claimant was involved in two motor vehicle accidents, which occurred in May and July of 2009. He also suffered an assault from behind in December of 2009, when he was hit on the head with a hard object. In October 2010, Employer filed a termination petition, alleging that Claimant had fully recovered from the work injury as of August 19, 2010, based on the independent medical examination (IME) of board-certified orthopedic surgeon Mario Arena, M.D. Claimant filed a timely answer, denying all material allegations.
In November 2010, Claimant filed a UR petition, seeking to have an authorized Utilization Review Organization (URO) review the reasonableness or necessity of treatment provided to him by Selena Xing, M.D., board-certified in physical medicine and rehabilitation and pain management, from September 13, 2010 to the present. In March 2011, Claimant filed a review petition, seeking to expand the original injury description to include an aggravation of preexisting low back and cervical degenerative changes, disc herniation and annular tear with lumbar radiculopathy, cervical radiculopathy and chronic pain syndrome. Having consolidated all three petitions for decision, the WCJ granted Employer's termination petition and denied both of Claimant's petitions. The Board affirmed and Claimant's petition for review to this Court followed.
In denying Claimant's petitions, the WCJ found his testimony to be generally not credible. WCJ's Finding of Fact No. 70. Specifically, she rejected his testimony that he only injured his shoulder in the May 2009 accident and that he suffered no injuries in the July 2009 accident. Id. at No. 66. In addition, she rejected his testimony that the December 2009 assault had no effect on the symptoms in his neck and lower back. Id. at No. 69. She also rejected his testimony that he did not have any problems with his neck or lower back before January 19, 2009. Id. at No. 70. Finally, the WCJ rejected all or parts of the testimony of the other doctors who testified due to Claimant's failure to advise them of some or all of the post-injury incidents: the two car accidents and the assault. Id. at Nos. 75, 79 and 81.
We turn first to the termination petition. An employer seeking to terminate a claimant's workers' compensation benefits must prove by competent medical evidence that the disability related to the compensable injury has ceased. Casne v. Workers' Comp. Appeal Bd. (STAT Couriers, Inc.), 962 A.2d 14, 16 (Pa. Cmwlth. 2008). Where a current disability exists, the employer has the burden of proving an independent cause for the disability or a lack of a causal connection between the continuing disability and the work-related injury. Metro. Ambulance Inc. v. Workers' Comp. Appeal Bd. (Walker), 702 A.2d 881, 884 (Pa. Cmwlth. 1997).
In support of its termination petition, Employer presented the deposition testimony of Dr. Arena. In rendering his opinion that Claimant had fully recovered from the work injury as of the date of the IME examination, Dr. Arena reviewed diagnostic studies and records, took Claimant's history, including the post-injury incidents, and performed a physical and neurological examination. Dr. Arena opined in great detail as to why the work injury did not have any effect on the degenerative disc disease in Claimant's spine or exacerbate the underlying degenerative processes in his lumbar spine. WCJ's Findings of Fact Nos. 71-74. In addition, although Dr. Arena testified that Claimant should be weaned from narcotic medications before returning to work as a truck driver, he opined that any narcotic dependence was not related to the work injury. Accepting Dr. Arena's testimony as credible, the WCJ concluded that Claimant had fully recovered from his work injury as of the date of the IME examination.
Claimant argues that Employer failed to meet its burden for a termination petition when the testimony of Dr. Arena is considered as a whole. See Casne, 962 A.2d at 16 (opinion of medical expert must be considered as a whole.) Specifically, Claimant maintains that Dr. Arena recanted his testimony as to full recovery on cross-examination when he acknowledged that Claimant took narcotic medication for his work injury and opined that Claimant needed to be weaned from that medication in order to return to his pre-injury occupation and that weaning would take at least a couple of months. Claimant maintains that there is no evidence that narcotics were prescribed for anything other than the work injury, including any of the three post-injury incidents. Accordingly, Claimant asserts that the WCJ's determination that he was fully recovered is not supported by the record in that Dr. Arena acknowledged that the narcotic dependence is a consequence of the work injury and prevents him from being capable of returning to his pre-injury employment without restriction. We reject Claimant's position.
It is true that, "[w]here a claimant in good faith seeks medical treatment for a work injury and the medical treatment itself either aggravates the existing injury or causes new, additional injury, the law regards the latter being causally related to the original work injury." Zuchelli v. Workers' Comp. Appeal Bd. (Indiana Univ. of Pa.), 35 A.3d 801, 808 (Pa. Cmwlth. 2011). There is no indication, however, that Claimant's apparent narcotic dependence resulted from the work injury. In that regard, we note that Claimant in his review petition, the denial of which he chose not to pursue on appeal, did not seek to add narcotic dependence to the injury description. In addition, although Dr. Arena testified that, as far as he knew, narcotic medication was started as a result of the work injury, he testified that at least some of the drugs were attributable to injuries and/or conditions that occurred after the work injury. For example, one drug was an antidepressant and another was for headaches, neither of which went with the work injury. Dr. Arena's Deposition, N.T. at 49-50; R.R. at 62-63a.
Dr. Arena's Deposition, N.T. at 41; R.R. at 54a.
Moreover, the fact that Dr. Arena recommended that Claimant should be free from narcotics before resuming his job as a truck driver did not render his testimony insufficient to support the termination petition. Dr. Arena emphasized that, although Claimant was taking a lot of narcotics, "from the perspective of the work injury, there's nothing that's keeping him from working." Id. at 47; R.R. at 60a. More specifically, Dr. Arena testified as follows:
Q. Doctor, with regard to [Claimant's] narcotic usage, are you attributing the narcotic usage to whatever happened on January 19, 2009 [work injury] or are you attributing that to the shoulder incident from December of 2009 or just his underlying status?Id. at 48; R.R. at 61a (emphasis added).
A. I think it's his underlying status, because, again, in my practice I don't prescribe narcotic medications for patients other than postoperative surgical patients. If somebody comes in with an acute fracture, then maybe they get narcotics for a few days. But using them on an ongoing basis, after awhile [sic], you're treating the narcotic usage and not any other source, because you develop a tolerance for it. So no, his use of narcotics at this point in time is not on the basis of that work injury.
As Claimant notes, it is well established that a WCJ must assess a medical expert witness's testimony as a whole. Casne. The WCJ accepted as credible Dr. Arena's testimony that any disability related to the compensable injury had ceased and that there was a lack of causal connection between any current disability and the work injury. Employer did not have to prove that Claimant was free from any narcotic dependence in order to satisfy its burden for a termination petition. Accordingly, we conclude that Dr. Arena's testimony satisfied Employer's burden.
The WCJ is the ultimate finder of fact and has exclusive authority over questions of credibility and evidentiary weight. Davis v. Workers' Comp. Appeal Bd. (City of Phila.), 753 A.2d 905, 909 (Pa. Cmwlth. 2000). The WCJ is free to accept or reject the testimony of any witness, including a medical witness, in whole or in part. Michel v. Workers' Comp. Appeal Bd. (U.S. Steel Corp.), 966 A.2d 643, 652-53 (Pa. Cmwlth. 2009). We will not disturb a WCJ's findings when they are supported by substantial evidence. Nevin Trucking v. Workmen's Comp. Appeal Bd. (Murdock), 667 A.2d 262, 267 (Pa. Cmwlth. 1995).
We turn now to the denial of Claimant's UR petition. An employer retains the burden of proof throughout the UR process as the party that seeks to change the status quo, which is its obligation to pay for the claimant's work-related medical expenses. AT&T v. Workers' Comp. Appeal Bd. (Dinapoli), 816 A.2d 355, 360 (Pa. Cmwlth. 2003). Specifically, an employer's never-shifting burden is to refute the provider's testimony and establish that the challenged medical treatment is unreasonable or unnecessary. Jackson v. Workers' Comp. Appeal Bd. (Boeing), 825 A.2d 766, 771 (Pa. Cmwlth. 2003).
In denying Claimant's UR petition, the WCJ accepted as credible the report and opinions of the UR physician, Richard S. Kaplan, M.D., board-certified in physical medicine and rehabilitation, and rejected that of Claimant's medical experts. Specifically, the WCJ found as follows regarding Dr. Kaplan:
83. The opinion of Dr. Kaplan is credible that [Dr. Xing's] treatment under review from September 13, 2010 and ongoing, including office visits, cervical epidural injections (a surgical procedure), and prescriptions for Opana ER, Topamax, Lidoderm, Fentanyl patch, Trazodone or any other mediations (medical records not
fully legible), was not reasonable or necessary medical care. This opinion is credible because he persuasively explained that Provider did not meet the standard of care, according to the Pennsylvania Medical Practice Act, that medical providers should maintain records of sufficient legibility and detailed history and physical examination, clinical impression and clinical decision-making, particularly true in a case which involves ongoing chronic medical treatment, and particularly in a case such as this one which involves treatment with invasive means such as epidural injection or with polypharmacy including opioid medications. During the period under review, Dr. Xing's records are essentially illegible and do not met this standard of care.WCJ's Findings of Facts Nos. 83 and 84.
84. The opinion of Dr. Kaplan is credible that Provider did not meet the standard of care with regard to ongoing narcotic prescriptions, according to the chronic pain guidelines from ACOEM [American College of Occupational and Environmental Medicine], which indicate that ongoing chronic pain management and opioid management in particular should be titrated by specific functional goals, with documentation of progress toward those functional goals and titration of the medications toward those goals. Dr. Kaplan's opinion is credible because he pointed out that Provider's medical records, to the extent that they are legible, do not set forth specific functional goals, with documentation of progress toward those functional goals, and titration of the medications toward those goals.
In an attempt to find fault with the above findings, Claimant argues that Dr. Kaplan and the WCJ erred in applying Pennsylvania standards to treatment provided by Delaware practitioner Dr. Xing and used the ACOEM guidelines only as they related to the medications and not, for example, to Dr. Xing's failure to maintain legible records. Accordingly, Claimant contends that the WCJ erred in denying the UR petition. We reject Claimant's position.
While it is true that a UR reviewer must explain the basis for determining that treatment is unreasonable or unnecessary, Dr. Kaplan's citation to Dr. Xing's failure to adhere to Pennsylvania standards did not render his opinion invalid or the WCJ's acceptance of his opinion erroneous. Notwithstanding Dr. Xing's status as a Delaware practitioner, it was not unreasonable for the WCJ to accept Dr. Kaplan's opinion as to the unreasonableness or lack of necessity of her treatment on the grounds that she failed to "maintain records of sufficient legibility and detailed history and physical examination, clinical impression and clinical decision-making, particularly true in a case which involves ongoing chronic medical treatment, and particularly in a case such as this one which involves treatment with invasive means such as epidural injection or with polypharmacy including opioid medications." Id. at No. 83.
Sweigart v. Workers' Comp. Appeal Bd. (Burnham Corp.), 920 A.2d 962, 965-66 (Pa. Cmwlth. 2007).
Moreover, while it is true that there is nothing of which we are aware in the Workers' Compensation Act or the applicable regulations found in Title 34, subchapter C of the medical cost containment regulations, that makes the standards of Pennsylvania applicable to out-of-state providers, there is similarly nothing we know of in them that does not make the standards of Pennsylvania applicable or at least relevant to treatment rendered by a Delaware provider. Given the fact that the WCJ found Dr. Kaplan to be credible and her determination, therefore, is based on his credibility, we conclude that the WCJ did not err in accepting Dr. Kaplan's determination that Dr. Xing's treatment was neither reasonable nor necessary. See Jackson, 825 A.2d at 772 (where a WCJ accepts a UR reviewer's opinion that treatment was unreasonable or unnecessary based on credibility, "that finding is conclusive and may not be disturbed on appeal, unless it is arbitrary and capricious.") In summary, there is nothing arbitrary or capricious about one board-certified physician opining that another board-certified physician failed to meet a minimal standard of care.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708. --------
For the above reasons, we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 20th day of February, 2014, the order of the Workers' Compensation Appeal Board is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge