Opinion
No. 848 C.D. 2014
01-06-2015
Michael Samuels, Petitioner v. Workers' Compensation Appeal Board (PeopleShare), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Claimant Michael Samuels petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed the order of the Workers' Compensation Judge (WCJ) granting in part and denying in part Claimant's Petition for Review of Utilization Review (UR) Determination. On appeal, Claimant raises a litany of issues challenging, inter alia, the timeliness of the UR determination, the quality of the UR review and report, the placement of the burden of proof and legal standard employed, and the WCJ's credibility findings and ultimate fact-finding. Discerning no merit to these contentions, we affirm.
Claimant sustained a totally disabling work-related injury to his low back in 2009. Claim proceedings followed and it was ultimately determined based upon the credible testimony of Claimant's treating physician, Dr. Edward Stankiewicz, that Claimant suffered "an aggravation of a degenerative disc disease with radiculopathy." Reproduced Record (R.R.) at 17, 19 [WCJ's decision dated November 23, 2010, Findings of Fact (FF) 5 and 9]. Dr. Stankiewicz (Provider) continued to treat Claimant for that injury and the reasonableness and necessity of his treatment was eventually challenged by Claimant's employer, Peopleshare, Inc. via a Utilization Review Request. Specifically, Employer sought review of all treatment provided or prescribed by Provider from April 11, 2011, and ongoing. Because the timing of the UR determination is challenged, we note that the Department of Labor and Industry assigned the UR request on May 11, 2011, the notice of assignment included a determination due date of July 15, 2011, and Dr. Alan Mager, the assigned reviewer, completed his review on July 14, 2011.
The request also listed "Pharmacy Solutions" as another treating provider.
Dr. Mager ultimately concluded that Provider's treatment was not reasonable and necessary in part. Specifically, he concluded that beginning July 5, 2011, office follow-up examinations once every three months were reasonable and necessary as was the prescription for Celebrex. On the other hand, he concluded that the following treatments were not reasonable and necessary: (1) all office visits during the period April 11, 2011, through July 4, 2011; (2) office visits beginning July 4, 2011, that occurred more frequently than once every three months; (3) Percocet and Cyclobenzaprine prescriptions after April 11, 2011; and (4) all in-office therapeutic exercises, TENS, traction and diathermy treatments as of April 11, 2011.
In reaching his conclusions, Dr. Mager noted that he reviewed Provider's office notes regarding Claimant's treatment beginning November 24, 2009, through May 10, 2011 (a total of 55 dates of treatment, 6 visits occurred during the period under review), and he spoke with Provider regarding Claimant's treatment. According to Dr. Mager's report, Claimant was diagnosed with lumbar disc bulges, lumbar radiculitis, lumbar stenosis, and low back pain, and he generally described Claimant's condition as "chronic low back pain with radiculitis and muscle spasm." Reproduced Record (R.R.) at 30. Dr. Mager observed that Provider's treatment records did not reflect any change in Claimant's subjective pain symptoms, functionality or daily activities, and no change in condition was evidenced in the Provider's objective physical findings. He further noted that Claimant's use of pain and spasm medications had not decreased. Moreover, while the treatment goals remained the same prior to and during the period under review, none of the stated goals was reached. These observations led Dr. Mager to opine that the challenged treatment was no longer reasonable and medically necessary.
According to the treatment dates noted in the UR Report, Provider treated Claimant once or twice a week during the period November 24, 2009, through June 1, 2010, and weekly during the period February 15, 2011, through May 10, 2011.
In rendering his opinion, Dr. Mager set forth the established treatment protocols for Claimant's diagnosis and specifically noted that, "[e]fficacy of treatment should be documented to provide clinical rationale for continued treatment." Id. at 29. Dr. Mager further noted that the American College of Occupational and Environmental Medicine (ACOEM) specifically recommends against provider office-based therapeutic exercises, heat diathermy, traction or TENS in cases of chronic low back pain and that these modalities should be performed on a regular basis by the patient in the home setting. Similarly, he noted that the ACOEM recommends against the long-term use of narcotic analgesics and muscle relaxants for chronic low back pain because the evidence is weak that the medications help to improve overall pain and spasms, except in cases of significant exacerbation. Dr. Mager indicated that Percocet, a narcotic analgesic, is frequently used for short-term pain situations, noting that long-term use can result in habituation, drug dependence and a lack of actual significant pain control. Similarly, Flexeril (or Cyclobenzaprine), a muscle relaxant, is most often beneficial during the first few weeks of use; continued use beyond that time frame often leads to significant loss of anti-spasm properties, leaving the patient mostly with the side effect of fatigue. According to Dr. Mager, there was no record evidence that these medications helped Claimant reach the goals outlined in Provider's records.
Specifically, he noted that established treatment protocols include but are not limited to:
[A]n initial brief course of physical therapy, then home exercises on a regular basis taught . . . by a therapist, home-based simple heat modalities, such as warm compresses and hot soaks, medications for pain and muscle spasm, changed as necessary, radiologic testing as deemed appropriate, referrals for interventional pain management options and surgical intervention, referrals for psychological counseling and treatment if deemed necessary, intermittent office reevaluations to determine the patient's progress in treatment and response to prescription medications, TENS unit for home use as needed for pain and spasm, and consideration of alternative chronic pain treatment approaches such as Oriental acupuncture. Efficacy of treatment should be documented to provide clinical rationale for continued treatment.Reproduced Record (R.R.) at 29.
The UR determination was appealed and the WCJ appointed Robert Sing, D.O., as an impartial physician to render a report regarding the reasonableness and necessity of the challenged treatment. Dr. Sing examined Claimant and reviewed a more extensive set of medical records, which included records of other medical providers. Dr. Sing's ultimate conclusions were similar to Dr. Mager's regarding the reasonableness and necessity for the office-based treatments, but he disagreed that continued use of Percocet was inappropriate and should be completely discontinued. In his report dated October 20, 2011, Dr. Sing opined that the TENS, traction and diathermy should be discontinued immediately, as should the Flexeril., Dr. Sing also opined that an attempt should be made to decrease Claimant's Percocet in order to identify the current dose necessary to manage his symptoms, and that Claimant should be evaluated on a monthly basis.
Cyclobenzaprine is the generic formulation for Flexeril; Dr. Sing was under the impression that Claimant had already stopped taking this medication.
In his report, Dr. Sing opined:
The patient however reports increased pain with TENS. The diathermy and traction tables would have been non-contributory to his rehabilitation after the first year of treatment . . . . The TENS, diathermy and traction tables should be discontinued immediately, and should have been discontinued after 12 months of treatment. The 10 minutes of discussion regarding ADL's [activities of daily living] should be restricted to once per month, not for 10 minutes every visit.R.R. at 47.
The subsequent deposition testimonies of Provider and Dr. Sing were submitted into evidence before the WCJ. The WCJ credited Dr. Mager's opinion in its entirety, except for his opinion that Claimant should be seen every three months for follow-up. As to the reasonableness and necessity for medical follow-up, the WCJ credited Dr. Sing's opinion that monthly office visits were appropriate. Accordingly, in accordance with the above conclusions, the WCJ granted in part and denied in part Claimant's Petition for Review. The Board affirmed on appeal.
We first address Claimant's contention that Employer failed to prove that the UR determination was timely issued. Although not clearly argued, Claimant suggests that an untimely determination is inadmissible and cannot support a determination that challenged treatment is unreasonable and unnecessary. Little discussion is required to address this argument. First, even if we assume, arguendo, that the UR determination was late (albeit within the time specified in the assignment notice), it appears that Claimant did not challenge it as untimely and waited until his appeal to the Board to raise the issue. Accordingly, we deem the issue to be waived. See Pa. R.A.P. 1551 (providing: "No question shall be heard or considered by the court which was not raised before the government unit . . . ."); Rox Coal Co. v. Workers' Comp. Appeal Bd. (Snizaski), 807 A.2d 906, 914 (Pa. 2002). Second, even if the issue were not waived, this court rejected a similar challenge by Claimant's counsel in Womack v. Workers' Compensation Appeal Board (School District of Philadelphia), 83 A.3d 1139 (Pa. Cmwlth.), petition for allowance of appeal denied, 94 A.3d 1011 (Pa. 2014) (concluding that the employer should not suffer where the assigned URO failed to meet a regulatory deadline and, therefore, declining to hold the UR determination void ab initio because it was 11 days late). Moreover, similar if not identical arguments to those argued herein were unsuccessfully raised by Claimant's counsel before the Supreme Court in seeking review of Womack, and again before this court in Perry v. Workers' Compensation Appeal Board (MidAtlantic Hose Center, LLC), Pa. Cmwlth. No. 467 C.D. 2014 (filed October 29, 2014). Accordingly, as these arguments have previously been raised and rejected, no further discussion is needed.
The regulatory provisions governing the timeframes for a UR determination are set forth and discussed in this court's decision in Womack v. Workers' Compensation Appeal Board (School District of Philadelphia), 83 A.3d 1139 (Pa. Cmwlth.), petition for allowance of appeal denied, 94 A.3d 1011 (Pa. 2014).
Next, Claimant takes issue with the WCJ's fact-finding, pointing to perceived omissions and inconsistencies. He further contends that the credibility determinations are unsupported by the record and are legally insufficient pursuant to our appellate authority [citing for support, inter alia, Daniels v. Workers' Compensation Appeal Board (Tristate Transportation), 828 A.2d 1043 (Pa. 2003)]. Specifically, Claimant contends that the WCJ failed to note that Dr. Mager: (1) did not examine Claimant; (2) lacked information regarding the history of Claimant's injury; (3) lacked reports from other treating providers; and (4) referenced an incorrect diagnosis. Claimant implies that these omissions undermine the credibility and competency of Dr. Mager's opinion. Claimant further contends: "As a result of these omissions, the Judge fails to identify the inadequate and, indeed flawed premise and diagnosis serving as the basis for Reviewer's opinions. The Reviewer therefore determined the reasonableness and necessity of treatment that would apply to a completely different medical condition than what was actually being treated." Brief at 18.
We conclude that there is no merit to this group of assertions. The UR process does not require the assigned reviewer to examine the claimant in order to decide the reasonableness and necessity of treatment; the process entails a review of medical records and allows the provider under review to discuss treatment decisions with the reviewer. See 34 Pa. Code § 127.469. Because the causal relationship between the treatment under review and the work injury is not at issue, 34 Pa. Code § 127.406(b)(1), a reviewer's lack of detailed information regarding the history of an injury will, at most, affect the weight and credibility of the UR report, a matter within the WCJ's purview. Likewise, a reviewer's failure to review all of a claimant's medical records is another factor for a WCJ to consider in determining the weight and credibility of the UR report. Sweigart v. Workers' Comp. Appeal Bd. (Burnham Corp.), 920 A.2d 962, 966 (Pa. Cmwlth. 2007).
We also discern no inconsistency in the adjudicated injury of "an aggravation of a degenerative disc disease with radiculopathy" and Dr. Mager's notation that Provider's records reflected diagnoses of lumbar disc bulges, lumbar radiculitis, lumbar stenosis, and low back pain. Moreover, such a difference in vernacular does not render the UR report invalid. Clearly, the adjudicated injury is very broadly and generally described, which is a common practice when identifying a work injury. On the other hand, the medical profession, for obvious reasons, tends to be more specific when identifying a patient's condition in the medical records. There is no contention by Claimant or the medical experts that the adjudicated injury does not include the more specific diagnoses reflected in Provider's medical records or that Provider was treating Claimant for anything but a work injury involving the low back. Further, the specific question before the reviewer was whether Provider's treatment for the conditions diagnosed remained reasonable and necessary. Both Dr. Mager and Dr. Sing provided opinions that the challenged in-office treatment was no longer reasonable and necessary for the diagnosed conditions, and Dr. Mager opined that continued use of Percocet and Cyclobenzaprine were also unreasonable and unnecessary. These opinions were legally competent and, to the extent credited, provided substantial evidence to support the WCJ's ultimate findings and conclusions.
We also reject Claimant's contention that the WCJ's reasons for crediting Drs. Mager and Sing were legally insufficient in violation of the reasoned decision requirement of Section 422(a) of the Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 834. In Daniels v. Workers' Compensation Appeal Board (Tristate Transport), 828 A.2d 1043, 1052-53 (Pa. 2003), our Supreme Court opined that when faced with conflicting deposition testimony, Section 422(a) requires a WCJ to articulate an objective basis for a credibility determination. Moreover, we "must view the [WCJ's] reasoning as a whole and overturn the credibility determination only if it is arbitrary and capricious or so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render it irrational." Casne v. Workers' Comp. Appeal Bd. (Stat Couriers, Inc.), 962 A.2d 14, 19 (Pa. Cmwlth. 2009). The WCJ's articulated reasons for his credibility determinations (i.e., in the case of Dr. Mager, his review of medical records, tests and medical guidelines, and in the case of Dr. Sing, his examination of Claimant, and review of medical records and diagnostic tests) satisfy the standard articulated in Daniels.
Claimant's other contentions regarding specific perceived inconsistencies or inaccuracies in Dr. Mager's description or review of Provider's treatment do not assert grounds for reversal; as noted above, these issues are matters that should be argued to the WCJ and go to the weight and credibility of the UR report. An expert opinion is not rendered incompetent unless it is based solely on inaccurate or false information. Casne v. Workers' Comp. Appeal Bd. (Stat Couriers, Inc.), 962 A.2d 14, 16 (Pa. Cmwlth. 2008). Moreover, in determining the competency of the opinion, a question of law for the court, we review the opinion in its entirety. Id. Dr. Mager's opinion was clearly not solely based on inaccurate information. Indeed, Dr. Sing, who reviewed more extensive medical records and examined Claimant, reached very similar conclusions regarding the challenged treatment. As noted above, the opinions are legally competent.
Next, as noted by Claimant, treatment may be reasonable and necessary if it is palliative only and does not serve to cure or improve the underlying injury. See generally Womack, 83 A.3d at 1152. See also Gary v. Workers' Comp. Appeal Bd. (Philadelphia Sch. Dist.), 18 A.3d 1282 (Pa. Cmwlth.), petition for allowance of appeal denied, 30 A.3d 489 (Pa. 2011). Contrary to Claimant's assertion, however, the challenged treatment here was not held unreasonable and unnecessary because it provided only temporary pain relief. Indeed, the WCJ credited Claimant's testimony that the challenged treatment helped to control his pain. Rather, Provider's treatment was deemed to be unreasonable and unnecessary because, inter alia, the credited UR expert opined that Provider's records failed to document any change in Claimant's symptoms, medication use and physical status despite ongoing and repeated in-office treatment and prescription use, which led to the conclusion that the "efficacy of treatment . . . was not established," that the in-office treatments should be performed by Claimant at home, and that, long-term use of narcotic pain relievers for low back pain can pose risks without actual significant pain control. Thus, we reject the contention that the wrong legal standard (functional improvement rather than palliative care) was used to evaluate the challenged treatment. Moreover, while we are sympathetic to Claimant's desire to continue his narcotic medication in light of his testimony that it helped control his pain, the UR reviewer may consider the risks posed by medication in determining whether continued use is reasonable and necessary. Bedford Somerset MHMR v. Workers' Comp. Appeal Board, 51 A.3d 267, 272-73 (Pa. Cmwlth.), petition for allowance of appeal denied, 57 A.3d 72 (Pa. 2012).
For these same reasons, we also reject the contention that Dr. Mager's comment that the "efficacy of the treatment has not been established" improperly shifted the burden of proof to Claimant. See Bedford Somerset MHMR, 51 A.3d at 272 (stating that the employer bears the burden of proof throughout the entire UR process). This comment reflects nothing more than the UR Reviewer's opinion that because the Provider's records failed to reflect or document any change in condition or improvement, including Claimant's complaints of subjective pain, continued use of the challenged treatment was not supported. We specifically disagree that the statement implies the UR Reviewer lacked adequate information, thereby requiring a determination in favor of the Provider. --------
For the above reasons, the Board's order is affirmed.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 6th day of January, 2015, the order of the Workers' Compensation Appeal Board in the above-captioned matter is AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge