Opinion
No. 1869 C.D. 2014
06-09-2015
Dr. Sofia Lam, Petitioner v. Workers' Compensation Appeal Board (Nabisco, Inc.), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Sofia Lam, M.D., (Dr. Lam) petitions for review of the October 8, 2014 order of the Workers' Compensation Appeal Board (Board), which affirmed the order of the Workers' Compensation Judge (WCJ) granting the Petition for Review of Utilization Review Determination (UR Petition) filed by Nabisco, Inc. (Employer). The WCJ and the Board concluded that the Employer's UR Petition must be granted based upon the doctrine of collateral estoppel. We affirm.
On January 21, 1985, Gerard Shea (Claimant) sustained a work-related injury to his lower back while in the course and scope of his employment with Employer. In a supplemental agreement dated October 6, 1994, Claimant's disability was deemed resolved from total to partial, and Employer, beside making a lump sum payment of $47,000.00 and monthly payments of $984.12 for the next five years, agreed to remain liable for Claimant's reasonable and necessary medical expenses. (WCJ's Finding of Fact No. 2; Board's decision at 1.)
On January 11, 2011, Employer requested a UR of treatment provided to Claimant by Dr. Lam. On March 21, 2011, the reviewer issued a UR determination finding that Dr. Lam's treatment was reasonable and necessary in part and unreasonable and unnecessary in part. Specifically, the reviewer determined that office visits every three to four months and Opana ER and Flexeril (both at 10 mg twice a day) were reasonable and necessary. The reviewer also determined that epidural injections, transforaminal injections, facet joint injections, decompressive neuroplasty, and lysis of adhesions were unreasonable and unnecessary. (Reproduced Record (R.R.) at 3a-9a, 24a.)
Pursuant to section 306(f.1)(6)(i) of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 531(6)(i), "[t]he reasonableness and necessity of all treatment provided by a health care provider under this act may be subject to prospective, concurrent or retrospective utilization review at the request of an employe, employer or insurer." Id. The provider, employer, employee, or insurer may appeal the findings of the utilization review organization by petition for review filed within 30 days after receipt of the report, which serves as evidence on appeal before a WCJ. Section 306(f.1)(6)(iv) of the Act, 77 P.S. §531(6)(iv).
On March 29, 2011, Dr. Lam filed a petition for review of the UR determination, which a WCJ denied on August 9, 2011. (R.R. at 16a-21a.) Consistent with the reviewer's UR determination, the WCJ concluded that epidural, facet, and transforaminal injections, decompressive neuroplasty, and lysis of adhesions were unnecessary and unreasonable "from January 6, 2011 and ongoing[.]" (R.R. at 20a.) With respect to the injections, the WCJ noted that "Dr. Lam's records are deficient in that no indication was found that the injections were providing relief to Claimant. Dr. Lam did not even review her records to dispute this when she discussed the matter with the [UR reviewer]." (R.R. at 20a.) Dr. Lam then filed an appeal to the Board, which affirmed the WCJ. Dr. Lam did not file an appeal to this Court. (R.R. 22a-31a.)
Approximately a month and a half after the WCJ issued his decision, Claimant filed a UR review request on September 28, 2011, regarding medical treatments provided to him by Dr. Lam for the time period of September 28, 2011 and ongoing. On October 25, 2011, a Utilization Review Organization (URO) designated Ray Steinhauser, M.D., as the URO reviewer. By determination dated December 4, 2011, Dr. Steinhauser concluded, among other things, that the following treatments were reasonable and necessary: transforaminal lumber epidural injections (up to 3 every 6 months); lumbar facet joint injections (up to 3 every 6 months for each the left and right side); right-sided sacroiliac joint injections (up to 3 every 6 months); and Nexium at 40 mg once a day. (WCJ's decision at Procedural History).
As noted by the Board, the WCJ erroneously believed that the medical provider, Dr. Lam, filed the instant UR request when, as a matter of fact, it was Claimant who filed the request. (Board's decision at 22 n.5; see also WCJ's decision at 1.)
Dr. Steinhauser also determined that Opana ER at 20 mg twice a day and Neurontin at 800 mg three times a day were reasonable and necessary, (WCJ's Finding of Fact No. 4), but Employer agrees that this medication is reasonable and necessary. (WCJ's Finding of Fact No. 3b.).
On January 11, 2012, Employer filed the instant UR Petition, and the case was assigned to a new WCJ due to the retirement of the previous WCJ. (WCJ's decision at Procedural History.)
In support of its petition, Employer submitted the WCJ's August 9, 2011 decision, documents related to that decision, and the Board's order and opinion affirming the decision. Employer also submitted the initial reviewer's March 21, 2011 UR determination and a supplemental report from the initial reviewer dated October 18, 2012. In this supplemental report, the initial reviewer reiterated the findings in his March 21, 2011 determination, and added his opinion that Nexium at 40 mg once a day and right-sided sacroiliac joint injections (after a September 28, 2011 injection) were unnecessary and unreasonable on the ground that such treatment would be repetitive, excessive, and not based on established clinical guidelines. (WCJ's Finding of Fact No. 3.)
In opposition, Dr. Lam introduced into evidence the UR determination of Dr. Steinhauser, which detailed the medical basis for his opinions discussed above. Dr. Lam also submitted her own medical report, explaining that she provides Claimant with facet joint injections in order to treat chronic pain in his lower back. Dr. Lam stated in her report that she agrees with Dr. Steinhauser's opinions and she noted that Claimant reports some pain relief with her current treatment plan. (WCJ's Finding of Fact Nos. 4-5.)
Claimant testified that he sees Dr. Lam approximately once every five weeks for injections and medications. Claimant said that the injections and medications are beneficial, but he begins to experience pain near the end of the five-week period. Claimant stated that his physical condition has generally improved during the last two years and that he has noticed a "great change" between the two UR reviews. According to Claimant, the reason for this change was: "I've been taking shots and I can tell you it's helped me a lot." (WCJ's Finding of Fact No. 6; R.R. at 55a.)
At the close of the evidence, the WCJ accepted Claimant's testimony as credible and persuasive. The WCJ further accepted the medical opinions of Dr. Steinhauser and Dr. Lam as credible and persuasive and rejected any medical opinions to the contrary. (WCJ's Findings of Fact Nos. 7-8.) After noting that these credibility determinations would normally result in a favorable ruling for Dr. Lam, the WCJ granted Employer's UR Petition based upon the doctrine of collateral estoppel. (WCJ's Findings of Fact Nos. 9-10.)
In all stages of a UR proceeding, the employer, seeking to avoid the payment of medical services, carries the burden of proof in demonstrating that the treatment in question is unnecessary or unreasonable. Cruz v. Workers' Compensation Appeal Board (Philadelphia Club), 728 A.2d 413, 417 (Pa. Cmwlth. 1999). Treatment may still be reasonable and necessary "even when it is designed to manage the claimant's symptoms rather than to cure or permanently improve the underlying condition." Jackson v. Workers' Compensation Appeal Board (Boeing), 825 A.2d 766, 771 (Pa. Cmwlth. 2003).
In making this determination, the WCJ relied on our decision in C.D.G., Inc. v. Workers' Compensation Appeal Board (McAllister), 702 A.2d 873 (Pa. Cmwlth. 1997), and offered the following rationale:
[The WCJ] finds that [Dr. Lam] previously litigated the reasonableness and necessity of essentially identical treatments to Claimant in the prior UR litigation decided by [the previous WCJ]. In his August 9, 2011 decision, [the previous WCJ] rejected the reasonableness and necessity of [Dr. Lam's] treatments as of January 6, 2011 and ongoing. Emphasis added. [This] decision was affirmed by the [Board] on April 16, 2013, and not appealed to the Commonwealth Court. Thus, the decision represents a final determination on the issue of Dr. Lam's treatments as of January 6, 2011 and ongoing. In the interim, [Dr. Lam] filed the prospective UR request and ultimately received a favorable report from Dr. Steinhauser, which was challenged by Employer and is the subject of this decision. In C.D.G., the Commonwealth Court explained that the doctrine of collateral estoppel applies in circumstances to prevent "a constant stream of utilization requests where the treatment and claimant's condition remain the same even though time has pas[sed]." Id. at 877. As in C.D.G., Claimant in the instant case failed to prove that his condition has changed. To the contrary, this [WCJ] accepts Claimant's testimony that any change to his condition was
an improvement, not a worsening. . . . Therefore, this [WCJ] cannot permit [Dr. Lam] to relitigate whether the same treatment was necessary without showing a change in condition.(WCJ's Finding of Fact No. 10.)
In addition, the WCJ expressed concern that the UR request in the present case was filed within two months after the August 9, 2011 decision, stating that "[s]uch chronology tends to suggest that [Dr. Lam] filed the instant UR request in an attempt to circumvent [the previous WCJ's] unfavorable determination." (Id. at n.1.)
Accordingly, the WCJ determined that collateral estoppel applied and principles of issue preclusion mandated that Dr. Lam's treatments were not reasonable or necessary as a matter of fact and law. The WCJ granted Employer's UR Petition. (WCJ's Conclusion of Law No. 2.)
Dr. Lam filed an appeal to the Board, which affirmed the WCJ. The Board concluded that C.D.G. was controlling and determined that Claimant failed to establish a sufficient change in his medical condition because his credible testimony demonstrated that his ailments have improved. (Board's decision at 23 and n.6.)
In a footnote, the WCAB also observed: "We note that the [WCJ] did erroneously find that [Dr. Lam] had filed the instant UR [r]equest when it was actually Claimant who filed that request. Nevertheless, we believe this error was harmless. Both [Dr. Lam] and Claimant were parties to the previous litigation and therefore, that determination was conclusive between these same parties in the subsequent action. . . ." (Board's decision at 26 n.5.)
On appeal to this Court, Dr. Lam acknowledges our holding in C.D.G. but contends that collateral estoppel does not apply because there was a change of circumstances in Claimant's condition since the March 21, 2011 UR determination. Dr. Lam asserts that Claimant's condition has gotten better with his treatment and notes that the WCJ credited Claimant's testimony in this regard, as well as her medical opinion and that of Dr. Steinhauser.
Our scope of review is limited to determining whether findings of fact are supported by substantial evidence, whether an error of law has been committed, or whether constitutional rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
The doctrine of collateral estoppel, often referred to as issue preclusion, "forecloses relitigation in a later action, of an issue of fact or law which was actually litigated and which was necessary to the original judgment." Hebden v. Workmen's Compensation Appeal Board (Bethenergy Mines, Inc.), 632 A.2d 1302, 1304 (Pa. 1993). Stated otherwise, collateral estoppel is "designed to prevent relitigation of issues which have once been decided and have remained substantially static, factually and legally." C.D.G., 702 A.2d at 875. Collateral estoppel applies where:
(1) the issue decided in the prior case is identical to the one presented in the later case; (2) there was a final judgment on the merits; (3) the party against whom the doctrine is asserted was a party or in privity with a party in the prior case and had a full and fair opportunity to litigate the issue; and (4) the determination in the prior proceeding was essential to the judgment.Pucci v. Workers' Compensation Appeal Board (Woodville State Hosp.), 707 A.2d 646, 648 (Pa. Cmwlth. 1998).
In C.D.G., the employer initially filed a petition to review the reasonableness and necessity of the claimant's medical treatment. While that petition was pending before a WCJ, our General Assembly enacted an amendment to the Workers' Compensation Act, commonly known as "Act 44." This amendment created the utilization review process, which similarly provides a process by which an employer can challenge a claimant's medical treatment.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4; 2501-2708.
Act of July 2, 1993, P.L. 190. --------
The employer then filed a utilization review request under Act 44, asserting that the claimant's medical treatment was not reasonable or necessary. The reviewer determined that the treatment was not necessary and the claimant sought further review by filing a utilization review petition. However, before the WCJ assigned to consider the Act 44 utilization review petition decided the merits of that petition, the WCJ who conducted hearings related to the employer's initial petition to review rendered a decision concluding that the treatments were unreasonable and unnecessary.
The employer in C.D.G. argued before the WCJ considering the Act 44 utilization review petition that the decision of the WCJ in the petition to review proceedings constituted a final adjudication on the merits of the reasonableness of the treatments and, therefore, the claimant's utilization review petition was precluded on collateral estoppel grounds. The WCJ rejected that argument and reviewed the experts' reports, ultimately concluding that the treatments were reasonable and necessary. The employer appealed to the Board, which concluded that collateral estoppel did not apply to the Act 44 proceedings and affirmed the WCJ.
On appeal to this Court, we reversed the Board. In doing so, we reasoned that collateral estoppel could preclude reconsideration of an identical challenge to medical treatment that had already been litigated, when the party seeking to relitigate the issue has not established a change in a claimant's physical condition. This Court stressed that the utilization review provisions of Act 44 did not change "the general rule that there has to be a change in claimant's physical condition from the last proceeding for collateral estoppel not to apply." C.D.G., 702 A.2d at 877. Moreover, we indicated that the provisions of Act 44 did not "vitiate the application of the doctrine of collateral estoppel to allow a constant stream of utilization requests where the treatment and claimant's condition remain the same even though time has pas[sed]." Id.
On this foundation, we concluded in C.D.G. that once the WCJ ruled on the employer's initial petition to review medical treatment, the doctrine of collateral estoppel barred the claimant from relitigating the reasonableness or necessity of his treatment in the Act 44 proceedings. We emphasized that the challenged treatment was the same in both proceedings, except for the frequency of treatment, and the only factual difference in the two proceedings was that treatment was rendered in a different time period.
Here, Dr. Lam does not dispute that all of the elements of collateral estoppel have been met; particularly, she does not dispute that the treatments were sufficiently the same in both proceedings and satisfied the "identical issue" or first element of the collateral estoppel test. Dr. Lam argues only that Claimant's change in condition, or, more accurately, improvement to his condition, establishes an exception to the doctrine.
According to Claimant's credible testimony, his condition improved because he took injection treatments. (WCJ's Finding of Fact No. 6; R.R. at 55a). However, these treatments (or nearly the same treatments) were recently determined by a WCJ to be unnecessary and unreasonable. It is true that the first WCJ found in his August 9, 2011 decision that the injections were not reasonable and necessary due, in large part, to the lack of evidence demonstrating that such treatments alleviated Claimant's condition, while, in the present case, there is credible evidence that Claimant's condition improved as the result of the injections. Nonetheless, under the doctrine of collateral estoppel, litigation of an issue necessarily encompasses all arguments and evidence that a party could have presented to resolve the issue; accordingly, a party may not have a second opportunity to prove a fact or make an argument relating to an issue previously decided where that party had a full and fair opportunity to litigate the issue in the first action. See Channellock, Inc. v. Workers' Compensation Appeal Board (Reynolds), 72 A.3d 731, 739-40 (Pa. Cmwlth. 2013); Weney v. Workers' Compensation Appeal Board (Mac Sprinkler Systems, Inc.), 960 A.2d 949, 954-56 (Pa. Cmwlth. 2008).
Given the procedural and factual posture of this case, Dr. Lam cannot attempt again to prove that the injection treatments are necessary and reasonable by relitigating their indispensability and success. Were this Court to conclude otherwise, a claimant/provider would have endless opportunities to litigate the propriety of identical (or nearly identical) medical treatment until a favorable result is ultimately achieved, which, in turn, defeats the very purpose of collateral estoppel and its attendant concept that an issue that is fully and fairly litigated is entitled to finality.
In reaching our conclusion, we note that in Gary v. Workers' Compensation Appeal Board (Philadelphia School District), 18 A.3d 1282, 1287 (Pa. Cmwlth. 2011), this Court distinguished C.D.G. factually. We did so on the ground that in C.D.G., Inc, the second petition sought to challenge the necessity of medical treatment only nine months after the first decision was rendered and there was no showing that there was a change in the claimant's medical condition; whereas in Gary, the second UR petition sought review of medical treatment five years and six months after the first decision and there was credible evidence in the record demonstrating that the claimant's medical condition had worsened during that time. Given these factual disparities, we concluded in Gary that collateral estoppel principles did not bar the employer from filing a second UR petition. In doing so, we left open the possibility, albeit in dicta, that the mere passage of time, alone, may be enough to allow a claimant to relitigate the reasonableness and necessity of a particular medical treatment when the claimant exhausts alternative forms of treatment and his medical condition has not improved. 18 A.3d at 1287 n.7 ("[I]n a UR proceeding, the passage of time may affect the reasonableness and necessity of a particular medical treatment, even if the claimant's medical condition has not changed. For example, surgery may not be a reasonable and necessary form of treatment for a claimant soon after a claimant is injured, but may become reasonable and necessary later if other less invasive forms of treatment have not been beneficial.").
In this case, Claimant filed the UR review within two months after the first WCJ's decision, and there was no showing that Claimant suffered a legally adequate change of condition; thus, this case falls squarely within the parameters of C.D.G. and Gary is inapplicable. Furthermore, given the short duration of time between the two UR reviews in this case, and the lack of any intervening and unsuccessful change(s) in treatment plans, the exception discussed in dicta in Gary is also inapplicable.
Therefore, we conclude that the tribunals below did not err in determining, consistent with C.D.G., that collateral estoppel barred Claimant and/or Dr. Lam from challenging whether the treatments at issue are reasonable or necessary.
Perhaps picking up on the mistake discovered by the Board, (Board's decision at 22 n.5), Dr. Lam also argues that the WCJ committed prejudicial error in erroneously noting that she filed the present UR request when it was Claimant who filed the request. (See WCJ's Finding of Fact No. 10.) We disagree. The WCJ's error in designating the correct party's name is merely a ministerial mistake that had no bearing on the outcome of this case. As the Board explained, both Dr. Lam and Claimant were parties to the previous litigation, and, as a result, the WCJ's August 9, 2011 decision binds them both to that final judgment for purposes of collateral estoppel. (Board's decision at 22 n.5.) See Popowsky v. Pennsylvania Public Utility Commission, 647 A.2d 302, 305 (Pa. Cmwlth. 1994) (stating that collateral estoppel will preclude review of an issue when "the party against whom the estoppel claim is made was a party, or was in privity with a party, to the previous adjudication"). Because the WCJ's error was harmless, Dr. Lam's second and final argument lacks merit. See Sturpe v. Unemployment Compensation Board of Review, 823 A.2d 239, 242 (Pa. Cmwlth. 2003) (concluding that an error was harmless where it has no effect on the outcome of the case).
Accordingly, we affirm the Board's October 8, 2014 decision.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 9th day of June, 2015, the October 8, 2014 order of the Workers' Compensation Appeal Board is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge