Opinion
No. 436 C.D. 2013
07-18-2013
Cheryl Petroski, Petitioner v. Workers' Compensation Appeal Board (Anemostat Products and Liberty Mutual Insurance Co.), Respondents
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Cheryl Petroski (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) affirming the decision of the Workers' Compensation Judge (WCJ) to grant in part Claimant's Petition for Review of Utilization Review Determination (Utilization Review Petition). For the reasons that follow, we affirm the Board.
On May 16, 1988, Claimant sustained an injury while in the course of her employment with Anemostat Products (Employer). Employer issued a Notice of Compensation Payable (NCP) recognizing the injury as a herniated nucleus pulposus and Claimant began receiving benefits. Subsequently, the wage portion of Claimant's claim was resolved but Employer remained responsible for reasonable, necessary and causally-related medical expenses.
On November 30, 2010, Employer filed a Utilization Review Request seeking a review of all prospective treatment and prescriptions provided to Claimant by Michael Gilhooley, M.D. (Dr. Gilhooley). Steven Feinstein, M.D. (Dr. Feinstein), a physician board-certified in internal medicine and utilization review and quality assurance, issued a Utilization Review Report and Determination based on his review of Claimant's medical records. Dr. Feinstein noted that the evidence he reviewed suggested that Claimant suffered from chronic pain, insomnia and anxiety and, accordingly, found that the following treatment was reasonable and necessary:
• Office visits every three months from December 8, 2010 and prospective;(Reproduced Record (R.R.) at 32a). However, Dr. Feinstein found that there was no evidence showing that Oxycontin was useful in facilitating Claimant's normal daily activities and that Claimant had continued complaints of escalating pain despite relatively large doses of narcotic analgesics. He concluded that "[i]t would be reasonable to allow the patient an additional three months of Oxycontin usage to allow for safe weaning or transitioning." Id. at 33a. He also found that Vicodin, Chantix, Vaniqua Cream, Phenergan and Celebrex were discontinued by Dr. Gilhooley on December 8, 2010, and that the current medical literature did not support the prescriptions of Proventil and Zantac. Accordingly, Dr. Feinstein found that the following treatment was no longer reasonable or necessary:
• Prescriptions for Skelaxin, Xanax and Temazepam every three months from December 8, 2010 and prospective;
• Prescriptions for Oxycontin for three months from December 8, 2010 through March 8, 2011.
• Office visits more than once every three months prospective from December 8, 2010;Id. Claimant filed a Utilization Review Petition and a hearing was held before the WCJ on June 15, 2011.
• Prescriptions for Oxycontin beyond March 8, 2011 and prospective;
• Prescriptions for Vicodin, Zantac, Proventil, Vaniqua Cream, Phenergan, Celebrex and Chantix prospective from December 8, 2010.
Section 306(f.1)(6)(iv) of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §531(6)(iv), provides:
If the provider, employer, employe or insurer disagrees with the finding of the utilization review organization, a petition for review by the department must be filed within thirty (30) days after receipt of the report. The department shall assign the petition to a workers' compensation judge for a hearing or for an informal conference under section 402.1...The utilization review report shall be part of the record before the workers' compensation judge. The workers' compensation judge shall consider the utilization review report as evidence but shall not be bound by the report.
At the hearing, Claimant testified that she currently took two 80-mg, two 40-mg and two 10-mg Oxycontin each day but had discontinued using all other medications. Claimant acknowledged that she had been taking Oxycontin for about ten years and that prior to taking the medication, she was in "excruciating pain" which limited her activities. (June 15, 2011 Hearing Transcript at 8). She explained that Oxycontin "changed [her] life" by alleviating her pain symptoms and allowing her to resume her normal activities. Id. at 9. Claimant further testified that she continues to see Dr. Gilhooley once per month for treatment and monitoring of her pain medication. She stated that since the Utilization Review Determination found her prescription for Oxycontin to no longer be reasonable and necessary, she pays $1,460 out of her own pocket for the medication each month. Claimant admitted on cross-examination that she has not worked or looked for work in over ten years.
The WCJ's Finding of Fact No. 7, which provides that Claimant noted "at time of hearing that her current medication regimen included Oxycontin, Zantac and Vicodin..." is inconsistent with Claimant's testimony. Claimant testified that Vicodin made her sick and confirmed that Dr. Gilhooley discontinued prescribing it to her. (See June 15, 2011 Hearing Transcript at 13, 22). Claimant further testified that she had been unable to get her prescription for Zantac since before March 8, 2011, because she could not afford it, and instead took Maalox and Tums.
Claimant also presented the deposition testimony of Dr. Gilhooley, a physician board-certified in internal medicine. Dr. Gilhooley testified that he has treated Claimant on a regular basis since 1996 or 1997. He stated that Claimant's primary issue has been lower back pain, for which he has prescribed various treatments, including Oxycontin. He testified that while he generally does not treat many patients with Oxycontin because it is a powerful medication which requires a significant amount of compliance on the patient's part, Claimant required this medication and exhibited the compliance necessary for him to monitor it. He explained that he felt prescribing Oxycontin to Claimant was appropriate because it was the medication "that afforded her the greatest quality of life...with the least amount of impairment of the other systems." (Dr. Gilhooley's September 30, 2011 Deposition Transcript at 11). Dr. Gilhooley stated that he did not agree with the Utilization Review's finding that Oxycontin was no longer reasonable or necessary, opining instead that it was necessary for Claimant to continue her Oxycontin regimen because "there is no other alternative means of controlling her pain" and because it is "the least impairing approach as the use of other medications or anti-inflammatories would at some point become toxic to her." Id. at 28. On cross-examination, Dr. Gilhooley admitted that on various occasions, Claimant had informed him that Oxycontin at the prescribed levels was not working or that she needed to refill her prescriptions early. Moreover, he confirmed that on December 8, 2010, Claimant made complaints of significant pain, stated that her pain was increasing, and related to him that she did not feel the medication was helping her pain.
The WCJ granted Claimant's Utilization Review Petition in part, accepting all the findings of the Utilization Review Determination. In finding the opinions of Dr. Feinstein to be more credible than those of Dr. Gilhooley, the WCJ particularly noted Claimant's complaints to Dr. Gilhooley that the Oxycontin at the prescribed levels was not working well, that her pain was actually increasing and that she did not feel that the medication was really helping her pain, as well as the fact that she occasionally had to refill her prescriptions early as a result of taking more than the prescribed dose. The WCJ also found Claimant's testimony to be inconsistent, noting that she testified that Oxycontin "changed my life," but nonetheless complained that the medication was not helping her pain and she did not look for work for more than ten years. Claimant appealed to the Board, which affirmed, and this appeal followed.
Our review of an order of the Board is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether Board procedures were violated, whether constitutional rights were violated or whether an error of law was committed. City of Pittsburgh v. Workers' Compensation Appeal Board (Marinack), 37 A.3d 39, 43 n.5 (Pa. Cmwlth. 2012).
On appeal, Claimant contends that the WCJ erred in determining that her prescriptions for Oxycontin and Vicodin were no longer reasonable or necessary. Claimant argues that Oxycontin and Vicodin were not prescribed to cure her underlying condition but, rather, are palliative in nature. The WCJ reasoned that because Claimant complained of increasing pain and occasionally would require a prescription refill before the scheduled time as a result of taking additional medication, Claimant did not need the pain medication because it was not helping her condition. Claimant alleges this reasoning is flawed and, as a result, the WCJ's order should be reversed.
Claimant states throughout her brief that that the WCJ and Board erred in determining that the prescriptions for Oxycontin, Vicodin and Zantac were no longer reasonable or necessary. However, Claimant makes no argument in her brief regarding her continuing need for Zantac. Accordingly, we will not disturb the Board's determination with respect to Claimant's prescription for Zantac.
The burden is on the employer throughout the Utilization Review process to prove that the challenged medical treatment is not reasonable and necessary because it is the employer who is seeking to change the status quo. AT&T v. Workers' Compensation Appeal Board (DiNapoli), 816 A.2d 355, 360 (Pa. Cmwlth. 2003). It is well-established that "medical treatment may be reasonable and necessary even if the treatment does not cure the underlying injury, so long as it acts to relieve pain and treats the symptomatology, i.e., if it is palliative in nature." Trafalgar House & St. Paul Fire & Marine Insurance v. Workers' Compensation Appeal Board (Green), 784 A.2d 232, 235 (Pa. Cmwlth. 2001). See also Glick v. Workers' Compensation Appeal Board (Concord Beverage Company), 750 A.2d 919 (Pa. Cmwlth. 2000); Cruz v. Workers' Compensation Appeal Board (Philadelphia Club), 728 A.2d 413 (Pa. Cmwlth 1999); Central Highway Oil Co. v. Workers' Compensation Appeal Board (Mahmod), 729 A.2d 106 (Pa. Cmwlth. 1999).
Here, Claimant's argument fails because Employer submitted evidence in the form of Dr. Feinstein's Utilization Review Report demonstrating that the Oxycontin prescribed to Claimant did not relieve her pain or treat her symptomatology. While Claimant and her treating physician offered conflicting testimony in that regard, the WCJ simply found Dr. Feinstein's opinion to be more credible. There was ample evidence in the record to support that credibility determination, including Claimant's complaints that Oxycontin at the prescribed levels was not working well or helping to alleviate her pain, her complaints that her pain was actually increasing, the fact that she refilled her prescriptions early as a result of taking more than the prescribed amount of Oxycontin, and the fact that she has not attempted to look for work in more than ten years. Accordingly, the WCJ and Board did not err in finding that Oxycontin was no longer reasonable or necessary beyond March 8, 2011.
It is well settled that the WCJ is the ultimate fact finder and is empowered to determine witness credibility and evidentiary weight. Leca v. Workers' Compensation Appeal Board (Philadelphia School District), 39 A.3d 631, 634 n.2 (Pa. Cmwlth. 2012). The WCJ is free to accept or reject, in whole or in part, the testimony of any witness, including medical witnesses, and unless made arbitrarily or capriciously, a WCJ's credibility determination will not be disturbed on appeal. Id. --------
With respect to Claimant's Vicodin use, the Utilization Review Report stated that Dr. Gilhooley discontinued that medication as of December 8, 2010. The only testimony offered by Claimant in this regard was that Dr. Gilhooley temporarily prescribed her Vicodin instead of the 10-mg Oxycontin because it was cheaper, but the Vicodin made her sick and Dr. Gilhooley eventually discontinued prescribing it. The record as a whole supports the WCJ and Board's finding that Vicodin was no longer a reasonable or necessary treatment as of December 8, 2010.
Accordingly, the order of the Board is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 18th day of July, 2013, the order of the Workers' Compensation Appeal Board, dated February 26, 2013, at No. A12-0179, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge