Opinion
No. 844 C.D. 2014
12-19-2014
Robert Tucker, Petitioner v. Workers' Compensation Appeal Board (Ecolaire Corporation), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Robert Tucker (Claimant) petitions for this Court's review of an adjudication by the Workers' Compensation Appeal Board (Board) reversing, in part, the Workers' Compensation Judge's (WCJ) decision to set aside a utilization review determination. In doing so, the Board held that certain factual findings of the WCJ were not supported by substantial evidence. We reverse.
On February 9, 1980, Claimant suffered a lower back injury while working at Ecolaire Corporation (Employer). Following two surgeries in 1982 and 1988, Claimant began treatment with his primary care physician, Louis Totani, M.D., who prescribed Percocet, Ambien, Ativan and occasionally Flexeril. In 2011, Joseph Cesanek, M.D., took over Dr. Totani's practice and began treating Claimant. Dr. Cesanek continued Claimant's medication regimen.
On February 15, 2012, Employer filed a utilization review request pursuant to Section 306(f.1)(6) of the Workers' Compensation Act (Act), 77 P.S. §531(6). Specifically, Employer challenged the reasonableness and necessity of Claimant's office visits and Dr. Cesanek's prescription of brand name rather than generic medications.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §531(6).
The Bureau of Workers' Compensation assigned the utilization review to Lawrence Axelrod, M.D., of Uniontown Medical Rehabilitation P.C. Dr. Axelrod reviewed Dr. Cesanek's treatment records from July 2011 to February 2012, which included dates of service and prescriptions. Dr. Axelrod concluded that because Claimant's subjective pain complaints have "persisted unabated for years," the prescribed medications were neither reasonable nor necessary. Reproduced Record at 18a (R.R. ___).
Claimant challenged Dr. Axelrod's determination with a petition for review filed on May 9, 2012, and the WCJ conducted a de novo hearing. Claimant testified, and he submitted a letter from Dr. Cesanek to support the reasonableness of Claimant's medication. In the letter, Dr. Cesanek explained that he assumed Claimant's care in 2012, when Dr. Totani retired. Dr. Cesanek went on to state, in relevant part:
It was of my belief that I was taking over [Claimant's] care of his chronic pain, anxiety, and insomnia that has resulted from his work injury. The plan which had been agreed upon prior to my care, was to be monthly visits to monitor his status and prescription medications, for maintenance of his pain control. I was also informed he had been on brand necessary medications for many years and this was agreed upon by his providers prior
to my care of [Claimant]. Since I have assumed the care of [Claimant], I understand his case has come under review again.R.R. 11a.
I find it quite interesting that when a new doctor assumes the care of this patient, that his core plan would be reviewed again. [Claimant's] care plan has been working and I would not change what has been helping him at this point. [Claimant] has been doing well with his Percocet, Ativan, Ambian [sic] and Flexeril and [I] would not recommend changing them or substituting for them.
Claimant also submitted a letter from his nephrologist, Robert Pursell, M.D., regarding his treatment for chronic kidney disease unrelated to his work injury. Dr. Pursell stated that "[Claimant] is on numerous medications, and from my standpoint any medications concerning his kidney disease or hypertension should definitely be brand and not generic." R.R. 12a.
The WCJ rejected Dr. Axelrod's opinion that Claimant's prescription regimen was not reasonable or necessary. The WCJ credited Dr. Cesanek's opinion that Claimant's treatment should continue unchanged, finding his opinion consistent with Claimant's credible testimony. The WCJ held that Employer "failed to offer expert medical evidence, herein found credible, [that] the Claimant's treatment by Dr. Cesanek is in any way unreasonable and unnecessary." R.R. 10a. Accordingly, the WCJ ordered Employer to continue to pay for Claimant's treatments by Dr. Cesanek and for the brand name medications prescribed.
The WCJ stated:
Dr. Axelrod's opinions are not credible as he had only a tiny portion of the Claimant's medical records. He failed to assign any value to a reduction in pain and he gave no credence whatsoever to the Claimant's beneficial result from the medications and the Claimant's increase in symptoms when the medications were not taken.R.R. 9a.
On review, the Board affirmed the WCJ's rejection of Dr. Axelrod's opinions as not credible, noting that it was the WCJ's prerogative to do so given Dr. Axelrod's limited review of Claimant's medical records. The Board reversed the WCJ's decision insofar as it ordered Employer to continue paying for Claimant's brand name medications. The Board found that the WCJ erred in relying on Dr. Pursell's recommendation that Claimant should receive brand name medications because Dr. Pursell is treating Claimant for non-work-related kidney disease. The Board noted that Dr. Cesanek did not provide an unequivocal opinion that Claimant's medications to treat his work injury should be brand name and not generic, because "[h]e stated only that he 'would not recommend changing or substituting'" the medications. R.R. 4a-5a (emphasis original).
On appeal, Claimant argues that the Board erred by shifting the burden of proof from Employer to him to establish that the medical treatment under review is reasonable and necessary. We agree.
Our review of the Board's decision determines whether an error of law was committed, constitutional rights were violated or whether necessary findings of fact are supported by substantial evidence. County of Allegheny v. Workers' Compensation Appeal Board (Geisler), 875 A.2d 1222, 1225 n.7 (Pa. Cmwlth. 2005).
The utilization review process established by Act 44 of 1993 is the exclusive way to challenge the reasonableness and necessity of a claimant's medical bills. County of Allegheny v. Workers' Compensation Appeals Board (Geisler), 875 A.2d 1222, 1226 (Pa. Cmwlth. 2005). Neither a WCJ nor the Board has jurisdiction to determine the reasonableness of medical treatment unless and until a report is issued and the Utilization Review Organization (URO) issues a determination. Id. According to Section 306(f.1)(6)(iv) of the Act, 77 P.S. § 531(6)(iv), "if the health care provider, employer, employee or insurer disagrees with the determination of the URO, he may within 30 days of the UROs determination, seek review by a WCJ . . . [t]his hearing before the WCJ is a de novo proceeding." Geisler, 875 A.2d at 1227.
Act of July 2, 1993, P.L. 190, as amended, effective August 31, 1993.
It is well settled that an employer seeking to change the status quo on the payment of work-related medical expenses has the burden throughout the utilization review process. The employer must defend a conclusion of the URO that the challenged medical treatment is not reasonable or necessary. AT&T v. Workers' Compensation Appeal Board (DiNapoli), 816 A.2d 355, 360 (Pa. Cmwlth. 2003). It is not necessary that the claimant present any evidence.
It is equally well settled that the WCJ has exclusive authority, as fact finder, to determine credibility of witnesses and to weigh the evidence. Lehigh County Vo-Tech School v. Workmen's Compensation Appeal Board (Wolfe), 652 A.2d 797, 800 (Pa. 1995). The WCJ is free to accept or reject the expert testimony of any witness, including a medical witness, in whole or in part. Riggle v. Workers' Compensation Appeal Board (Precision Marshall Steel Company), 890 A.2d 50, 57 n.11 (Pa. Cmwlth. 2006).
Here, the WCJ rejected Dr. Axelrod's opinions as not credible for the stated reason that Dr. Axelrod reviewed only a small portion of Claimant's medical records and did not assign any value to the benefits Claimant experienced from the medications prescribed by Dr. Cesanek. The Board expressly affirmed the WCJ's rejection of Dr. Axelrod's opinion, which was Employer's only evidence in support of the determination of the URO. Thus, Employer was left with no evidence to support its defense of the utilization review determination. In that circumstance, the WCJ correctly granted Claimant's petition for review, and the Board erred in reversing, based on its assessment of Claimant's expert evidence.
Notably, in a utilization review proceeding, the physician assigned by the Bureau to review a treatment regimen reviews only those medical records chosen by the claimant's treating physician under review. Dr. Axelrod cannot be faulted for reviewing the small portion of Claimant's records because they were chosen by Claimant's treating physician. Employer appealed this issue to the Board, but it affirmed that part of the WCJ's decision to allow Claimant's medication regimen to continue without addressing the issue. However, Employer did not cross-appeal the Board's affirmance of the WCJ on this point. --------
Accordingly, the Board's order is reversed.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 19th day of December, 2014, the order of the Workers' Compensation Appeal Board dated April 22, 2014, in the above-captioned matter is REVERSED insofar as it reversed the Workers' Compensation Judge's order granting Petitioner Robert Tucker's Petition to Review Utilization Review Determination.
/s/_________
MARY HANNAH LEAVITT, Judge