Opinion
No. 894 C.D. 2012
03-12-2013
Amit Vyas, Petitioner v. Workers' Compensation Appeal Board (Tyco Healthcare/Confab KOP), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Amit Vyas (Claimant) petitions for review of the April 11, 2012, order of the Workers' Compensation Appeal Board (WCAB), which affirmed three decisions of a workers' compensation judge (WCJ) dismissing Claimant's remanded claim petition, penalty petition, and petition for review of a utilization review (UR) determination under the Workers' Compensation Act (Act). We affirm.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
Claim Petition
On June 12, 2007, Claimant filed a claim petition alleging that on May 9, 2007, he injured his lower back pushing and pulling heavy materials while working for Tyco Healthcare/Confab KOP (Employer). (WCJ's Decision, 6/10/08, Findings of Fact, Nos. 1, 6.) Claimant also requested penalties because of Employer's failure to accept or deny his claim within 21 days of notice of the injury. Employer filed an answer denying Claimant's allegations.
The WCJ conducted a hearing at which Claimant testified that after his May 9, 2007, injury he worked light duty for Employer until May 24, 2007, when he ceased working based on his doctor's advice.
Employer presented the deposition testimony of Dr. Eugene Elia, who examined Claimant on September 26, 2007. Dr. Elia characterized Claimant's injury as a lumbar sprain and strain. Dr. Elia offered the opinion that Claimant could not return to work without restrictions, but could perform light-duty work. (WCJ's Decision, 6/10/08, Findings of Fact, No. 18.)
Employer offered into evidence a letter sent to Claimant in October 2007, offering him a light-duty position at his pre-injury weekly wage. Claimant did not accept the job offer. (WCJ's Decision, 6/10/08, Findings of Fact, No. 28.)
The job offer letter stated, in part:
We are pleased to offer you a position with the following duties, which are within the restrictions of Dr. Elia . . . . The position is being offered to you at your pre-injury average weekly wage without wage loss, and is available for 14 days from the date of this correspondence at which time the offer will expire.(Job Offer Letter, 10/23/07, at 1.)
Dr. Ira Weiner also examined Claimant and testified that Claimant suffered a herniated bulging disc. (WCJ's Decision, 6/10/08, Findings of Fact, No. 14.) Dr. Weiner examined the job offer and opined that Claimant could not perform the listed job duties. (Id., No. 16.)
Carl Lesperance, the environmental health and safety manager at Employer's manufacturing facility, described the job offer that Employer extended to Claimant. (WCJ's Decision, 6/10/08, Findings of Fact, No. 22.) Lesperance testified that the duties described in the job offer did not exceed Claimant's restrictions. (Id., Nos. 22-27.)
On June 10, 2008, the WCJ granted Claimant's petition in part and denied it in part. The WCJ found the testimony of Lesperance and Dr. Elia credible and persuasive. (WCJ's Decision, 6/10/08, Findings of Fact, No. 31.) The WCJ specifically rejected the testimony of Claimant and Dr. Weiner where it conflicted with Dr. Elia's. (Id., No. 30.)
The WCJ concluded that Claimant had suffered a work-related lumbar strain and sprain. (WCJ's Decision, 6/10/08, Findings of Fact, No. 2.) The WCJ determined that Claimant had an average weekly wage (AWW), inclusive of overtime pay, of $944.72. (Id., No. 5.) The WCJ awarded Claimant partial disability from May 9, 2007, through May 23, 2007, and total disability from May 24, 2007, through October 22, 2007, at a rate of $629.81 per week. (Id., Nos. 2, 5.)
Claimant noted that, prior to his injury, he worked between 62 and 72 hours per week at $12.55 per hour, and he received overtime pay when he worked more than 40 hours. (WCJ's Decision, 5/20/10, Findings of Fact, No. 3.)
Because the WCJ found that Employer had offered Claimant suitable work and Claimant did not accept the position, the WCJ suspended Claimant's benefits as of October 23, 2007. (WCJ's Decision, 6/10/08, Findings of Fact, No. 3.) The WCJ concluded that Employer's contest was reasonable.
On July 3, 2008, Claimant appealed the WCJ's decision to the WCAB, claiming that the WCJ failed to take into account Claimant's overtime earnings. Claimant argued that he remained entitled to partial compensation because he had previously worked significant overtime and Employer's job offer only supplied 40 hours of work per week. Claimant also argued that the WCJ erred in concluding that the Employer's contest was reasonable because Employer produced no evidence to support its denial of the occurrence of a work-related injury or its failure to accept or reject the claim within 21 days of notice. On June 22, 2009, the WCAB remanded to the WCJ to make further determinations about overtime earnings and to determine whether Employer had a reasonable basis for its contest.
On October 26, 2009, Lesperance provided further testimony via deposition. Lesperance noted that Employer had a policy of paying a worker who returned to light duty at their pre-injury weekly wage. Lesperance recalled that the October 23, 2007, job offer expressly stated that the modified duty position would be offered at Claimant's "pre-injury average weekly wage without wage loss." (WCJ's Decision, 5/20/10, Findings of Fact, No. 6; Job Offer Letter, 10/23/07, at 1.) Claimant's counsel objected to Lesperance's testimony as lacking foundation and being based on hearsay.
At the hearing, Claimant's counsel objected several times:
Q. Now, what was your understanding as to how Mr. Vyas would have been paid?(N.T., 10/26/09, at 8-9.)
Mr. Matteo: I'm just going to object to lack of foundation and hearsay.
Q. You can answer.
A. Okay. Basically the way we do this is is [sic] we take the average weekly wage or whatever they were making prior to and that job is paid at that particular rate, so it varies depending on what the person was being paid.
* * *
Q. What's your understanding of how he would have been paid based upon that job offer letter?
Mr. Matteo: Same objection.
A. That would be taking into consideration any overtime, any wages, anything that he would have been accumulating at that point.
* * *
Q. And what would he have been paid at that point?
Mr. Matteo: Objection. Lack of foundation and hearsay.
Q. You can answer.
A. He would have been paid I believe [$]944.72 per week.
On May 20, 2010, the WCJ decided Claimant's remanded claim petition, finding that the job offer would not have resulted in wage loss. (WCJ's Decision, 5/20/10, Conclusions of Law, No. 2.) Therefore, Claimant's benefits remained suspended from October 23, 2007, onward. The WCJ also concluded that Employer's contest was unreasonable prior to October 23, 2007. The WCJ required Employer to pay $2,614.00 in unreasonable contest attorney fees. (Id., Nos. 3, 4.)
On October 23, 2007, Claimant refused Employer's job offer. The contest became reasonable as of this date because after Claimant rejected Employer's job offer, Employer had reasonable grounds to contest Claimant's good faith. See Vols v. Workmen's Compensation Appeal Board (Alperin, Inc.), 637 A.2d 711, 713 (Pa. Cmwlth. 1994) (holding that claimant did not make a good faith effort to return to work where claimant failed to accept valid job offer from employer).
Penalty Petition
In addition to the claim petition, on October 31, 2008, Claimant filed a penalty petition alleging, inter alia, that Employer violated the Act by failing to pay for medical treatment related to the work injury. Employer sent a letter to Claimant on December 5, 2008, denying payment of several medical bills because Dr. Gregory Pierce had "changed his diagnosis mid-stream." (WCJ's Penalty Decision, 5/13/10, Findings of Fact, No. 6.) On May 13, 2010, the WCJ denied Claimant's penalty petition because Claimant received treatment for conditions not related to his work-related injury. (Id., No. 7.)
UR Petition
On February 26, 2009, Employer filed a UR request seeking a review of all treatment provided to Claimant by Dr. Pierce, from January 20, 2009, and ongoing. A UR determination was issued on April 20, 2009, wherein the UR physician, Dr. Stephen Thomas, determined that certain treatments Claimant received after January 20, 2009, were unreasonable and unnecessary.
In the UR determination, Dr. Thomas found the reasonable and necessary care to include: office visits no greater than six times yearly; Amitriptyline 25mg nightly; and a Flector patch 1.3% every 12 hours as needed. (WCJ's UR Decision, 5/13/10, Findings of Fact, No. 6.) Dr. Thomas found the unreasonable and unnecessary care to include: percutaneous electrical nerve stimulation; injection (facet joint injections utilizing Marcaine and Sarain); Oxycontin; Oxycodone/Percocet; Senokot; Valium; Ambien; and office visits greater than six times yearly. (Id.)
Thereafter, Claimant filed a UR petition. The WCJ specifically found Dr. Thomas more credible and persuasive than Claimant's expert, Dr. Pierce, because Dr. Thomas had superior credentials. (WCJ's UR Decision, 5/13/10, Findings of Fact, No. 10.) On May 13, 2010, the WCJ concluded that Employer had satisfied its burden of proving that the treatment received by Claimant after January 20, 2009, was not reasonable or necessary. Accordingly, the WCJ denied the Claimant's UR petition.
Dr. Pierce is a Diplomate of the American Academy of Pain Management. However, Dr. Thomas is a Diplomate of the American Board of Pain Medicine and also has a certification in the subspecialty of pain medicine.
On June 1, 2010, Claimant appealed the WCJ's determinations on the remanded claim petition, the penalty petition, and the UR petition to the WCAB. On April 11, 2012, in a thorough and well-reasoned opinion, the WCAB affirmed all three appeals. Claimant now petitions this court for review of the WCAB's order, raising several issues for our consideration.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law and whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
Claimant argues that the WCJ erred by failing to award Claimant partial benefits from October 23, 2007, onward. We disagree.
Employer offered Claimant a light-duty job, which he did not accept. (WCJ's Decision, 6/10/08, Findings of Fact, No. 28.) "When an employer presents an offer for a job which is tailored to the claimant's abilities, the claimant must make a good faith effort to return to work; if a claimant refuses a valid job offer [his] benefits can be modified." Vols v. Workmen's Compensation Appeal Board (Alperin, Inc.), 637 A.2d 711, 713 (Pa. Cmwlth. 1994); see also Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Company), 516 Pa. 240, 252, 532 A.2d 374, 379-80 (1987) (placing the initial burden on the employer to produce evidence of the available job).
Claimant argues that the job offer would have paid his previous hourly rate, as opposed to his previous AWW. When an employee remains partially disabled, he "is entitled to receive a percentage of the difference between [his] wages at the time [he] was injured and [his] earning power upon [his] return to work." Harper & Collins v. Workmen's Compensation Appeal Board (Brown), 543 Pa. 484, 490, 672 A.2d 1319, 1321 (1996); see also Section 306(b) of the Act, 77 P.S. §512. Here, the WCJ determined that the job offer would have paid Claimant's AWW, while only requiring him to work 40 hours per week. In making this determination, the WCJ relied on substantial evidence: the credible testimony of Lesperance, the plain language of the offer letter, and the complete lack of contradictory evidence presented by Claimant. The WCJ interpreted the offer as paying the AWW, and we find no error in this determination.
Claimant argues that the job would have actually paid $502.00 per week because it paid his previous hourly rate of $12.55 across 40 hours. The difference between his stipulated AWW of $944.72 and $502.00 is $444.72, two-thirds of which is $295.15, which Claimant argues he should receive in partial disability.
"The WCJ is the ultimate factfinder and has complete authority over questions of credibility." Barrett v. Workers' Compensation Appeal Board (Sunoco, Inc.), 987 A.2d 1280, 1288 n.16 (Pa. Cmwlth. 2010).
Claimant further argues that the WCJ erred by overruling Claimant's objections to Lesperance's testimony about the job offer because the testimony lacked foundation and relied upon hearsay. "Hearsay evidence, properly objected to, is not competent evidence to support a finding of the Board." Walker v. Unemployment Compensation Board of Review, 367 A.2d 366, 370 (Pa. Cmwlth. 1976).
Claimant argues that Lesperance's conclusions must have been based upon hearsay from his co-workers, and thus lacked foundation. However, the WCJ based his credibility finding on the personal knowledge that Lesperance had of Employer's policies. Substantial evidence supports Lesperance's personal knowledge of Employer's policies, including: the plain language of the offer letter, his title, his job duties, and his previous experience bringing injured employees back to new positions. Thus, the WCJ did not err by overruling the objection and using Lesperance's testimony in determining that the job offer would have paid Claimant his previous AWW.
Because Employer offered Claimant a job paying his previous AWW and Claimant did not make a good faith effort to return to work, i.e., return to work by accepting that job, Claimant is not entitled to partial benefits from October 23, 2007, onward.
Claimant next argues that the WCJ erred by limiting the unreasonable contest fee in the remanded claim petition to $2,614.00. We disagree.
Claimant sought $22,614.00 in legal fees.
"[R]easonable counsel fees are awarded against the employer as a cost under Section 440 of the Act, 77 P.S. §996, unless the record establishes a reasonable basis for the contest." Boyer v. Workers' Compensation Appeal Board (First Capital Insulation, Inc.), 740 A.2d 294, 296 (Pa. Cmwlth. 1999). "An award of counsel fees is the rule and excluding counsel fees is the exception, to be applied only where the employer meets its burden of presenting sufficient evidence to establish that its contest was reasonable." Id. A contest is reasonable if it "is brought to resolve a genuinely disputed issue, not merely to harass the claimant." Cleveland Brothers v. Workers' Compensation Appeal Board (Hazlett), 57 A.3d 199, 204-05 (Pa. Cmwlth. 2012).
Here, the WCJ determined that Employer's contest transitioned from unreasonable to reasonable on October 23, 2007, the date of the job offer. This court has noted that "'an unreasonable contest might become reasonable at some later point in the proceedings and thereby end an employer's exposure to unreasonable contest fees for fees incurred after producing evidence sufficient to support a finding of reasonable contest.'" Arnold v. Workers' Compensation Appeal Board (Baker Industries), 859 A.2d 866, 870 (Pa. Cmwlth. 2004) (emphasis added) (quoting Crouse v. Workers' Compensation Appeal Board (NPS Energy SVC), 801 A.2d 655, 660 (Pa. Cmwlth. 2002)).
Section 440(b) of the Act, added by section 3 of the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. §996(b), requires the WCJ to make findings on the duration of the proceedings and states:
If counsel fees are awarded and assessed against the insurer or employer, then the workers' compensation judge must make a finding as to the amount and the length of time for which such counsel fee is payable based upon the complexity of the factual and legal issues involved, the skill required, the duration of the proceedings and the time and effort required and actually expended.
Employer produced evidence indicating the reasonableness of its contest as of October 23, 2007, by demonstrating that Employer offered a job to Claimant on that date, and Claimant rejected the offer. We disagree that the WCJ committed an error of law by limiting the fee imposed to the time spent by counsel before October 23, 2007. We conclude that the sum of $2,614.00 bears a reasonable relationship to the complexity of the factual and legal issues involved. Thus, the WCJ did not err by limiting the unreasonable contest fee to $2,614.00.
Next, Claimant argues that the WCJ erred by dismissing Claimant's penalty petition because Employer failed to pay Claimant's reasonable and necessary medical expenses. We disagree.
Section 435(d) of the Act, added by section 3 of the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. §991(d), provides "[t]he department, the board, or any court which may hear any proceedings brought under this act shall have the power to impose penalties as provided herein for violations of the provisions of this act . . . ." Section 306(f.1)(5) of the Act, 77 P.S. §531(5), requires employers to pay for treatment provided within 30 days of receiving the bill.
Claimant avers that Employer bore responsibility for reimbursing costs from treatment of his additional injuries because an obvious causal relationship exists between the established work-related injury and the additional injuries. Particularly, Claimant asserts that the causal relationship is evident because both the lumbar sprain and strain and the additional injuries afflicted Claimant's lower back.
Claimant received treatment for a herniated disc, lesions, thoracic sprain, and radiculopathy. His established injury was a lumbar sprain and strain. The WCJ found:
After carefully reviewing and considering the entire evidence of record as a whole, the undersigned finds that the subject medical bills were not for the treatment of conditions related to Claimant's accepted May 9, 2007 work injury. In this regard, the undersigned notes that in the June 2008 Decision granting Claimant's Claim Petition, the undersigned specifically found that Claimant's work-related injury was limited to a lumbar sprain and strain, and that Claimant's evidence demonstrates Claimant submitted bills for treatment of conditions, including herniated disc, lesions, thoracic sprain and radiculopathy, which were never found to be compensable.(WCJ's Penalty Decision, 5/13/10, Findings of Fact, No. 7.)
An employer can be responsible for treatment of symptoms arising from the compensated injury where the connection is obvious. See Hilton Hotel Corporation v. Workmen's Compensation Appeal Board (Totin), 518 A.2d 1316, 1318 (Pa. Cmwlth. 1986) (finding that employee failed to show that depression was causally connected with established lumbosacral injury). An obvious connection "involves a nexus that is so clear that an untrained layperson would not have a problem in making the connection between the injury and a disability." Tobias v. Workmen's Compensation Appeal Board (Nature's Way Nursery, Inc.), 595 A.2d 781, 784 (Pa. Cmwlth. 1991). "Where, however, there is no obvious causal relationship between the injury giving rise to the medical expenses claimed and the accident . . . 'unequivocal medical testimony [is] required to prove causation.'" Hilton Hotel, 518 A.2d at 1318 (quoting Workmen's Compensation Appeal Board v. Bethlehem Mines Corporation, 349 A.2d 529, 530 (Pa. Cmwlth. 1975)).
We find unavailing Claimant's argument that merely because the diagnosed injury and the additional injuries impacted the lower back, the additional injuries are obviously a natural and probable result of the established, work-related injury. Accordingly, no obvious connection is apparent, and the burden fell on the Claimant to prove that the additional injuries existed and arose out of the workplace injury.
Claimant cites a string of cases, including Westmoreland County v. Workers' Compensation Appeal Board (Fuller), 942 A.2d 213 (Pa. Cmwlth. 2008); City of Philadelphia v. Workers' Compensation Appeal Board (Smith), 946 A.2d 130 (Pa. Cmwlth. 2008); and Marks v. Workers' Compensation Appeal Board (Dana Corporation), 898 A.2d 689 (Pa. Cmwlth. 2006), asserting that the burden should have fallen on Employer to disprove the causal relationship. These cases, however, are factually distinguishable. See Westmoreland County, 942 A.2d at 215-16 (creating new findings of fact that included a herniated disc in addition to a lumbar strain); City of Philadelphia, 946 A.2d at 137 (amending a NCP to include a herniated disc); Marks, 898 A.2d at 691 (noting that Claimant filed a petition requesting that his work-related injury be expanded to include a herniated disc). While these cases indicate that a WCJ can expand the original work-related injury, here, the fact remains that the WCJ, in light of the evidence, did not expand Claimant's work-related injuries to include the additional injuries.
The WCJ noted that Claimant's medical evidence was not credible or persuasive. (WCJ's Penalty Decision, 5/13/10, Findings of Fact, No. 2.) The WCJ specifically denied that Claimant suffered a "herniated bulging disc at L4-5 on the right with impingement on the right nerve root, right radiculitis or radiculopathy at L5, and thoracic . . . sprain and strain." (Id., No. 2.) Dr. Thomas's testimony provides substantial evidence supporting these findings.
The burden fell on Claimant to prove that the additional injuries existed and arose out of the original work-related injury. Claimant did not meet his burden. Therefore, the WCJ appropriately did not penalize Employer because it did not violate section 306(f.1)(5) of the Act, 77 P.S. §531(5).
With regard to the UR petition, Claimant argues that the WCJ erred by dismissing it. We disagree.
First, Claimant contends that the testimony of Dr. Thomas could not be considered as evidence because he specializes in a different field than Dr. Pierce. Section 306(f.1)(6)(i) of the Act states that "[u]tilization review of all treatment rendered by a health care provider shall be performed by a provider licensed in the same profession and having the same or similar specialty as that of the provider of the treatment under review." 77 P.S. §531(6)(i).
Here, Dr. Pierce specializes in pain management, whereas Dr. Thomas specializes in pain medicine. We find these specialties sufficiently similar because of the narrow difference between specializing in "pain management" and "pain medicine." Because section 306(f.1)(6)(i) of the Act, 77 P.S. §531(6)(i), only requires that the reviewer be of the same or similar specialty, the WCJ did not err in crediting Dr. Thomas's testimony.
Second, Claimant argues that Dr. Pierce provided palliative treatment to Claimant and that palliative treatment is not necessarily unreasonable or unnecessary. It is well established that "'treatment may be reasonable and necessary even if it is designed to manage the claimant's symptoms rather than to cure or permanently improve the underlying condition.'" Glick v. Workers' Compensation Appeal Board (Concord Beverage Company), 750 A.2d 919, 921 (Pa. Cmwlth. 2000) (quoting Cruz v. Workers' Compensation Appeal Board (Philadelphia Club), 728 A.2d 413, 417 (Pa. Cmwlth. 1999)). However, the WCJ did not find the treatment to be unreasonable and unnecessary merely because it was palliative.
Instead, Dr. Thomas noted that many of the therapies did not follow the standard protocol; the treatments lacked documentation in accordance with the Pennsylvania State Medical Guidelines; and Dr. Pierce kept incomplete records. (WCJ's UR Decision, 5/13/10, Findings of Fact, No. 5.) On these bases, Dr. Thomas determined that certain treatments were unreasonable and unnecessary. Thus, the WCJ did not err in concluding that the treatments were neither reasonable nor necessary because substantial evidence supported these findings.
The WCJ found Dr. Thomas's testimony more credible than Dr. Pierce's. (WCJ's UR Decision, 5/13/10, Findings of Fact, No. 11.) "Such a credibility determination is binding on appeal." Howrie v. Workers' Compensation Appeal Board (CMC Equpiment Rental), 879 A.2d 820, 823 (Pa. Cmwlth. 2005). --------
Finally, Claimant argues that the WCJ erred by denying counsel fees for an unreasonable contest in connection with the penalty petition and UR petition. We disagree.
An award of counsel fees is the rule in workers' compensation cases and their exclusion is the exception. Essroc Materials v. Workers' Compensation Appeal Board (Braho), 741 A.2d 820, 826 (Pa. Cmwlth. 1999). The burden of proving a reasonable contest is on the employer. Id. "Unless the employer establishes that its contest was prompted to resolve a genuinely disputed issue, we will presume that the contest was unreasonable." Id. at 826-27 (citation omitted). Here, Employer established a genuinely disputed issue in the penalty petition and the UR petition regarding the Claimant's injuries and the treatment that he received. Thus, we affirm the WCJ's decision denying counsel fees for an unreasonable contest in connection with the penalty petition and UR petition.
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 12th day of March, 2013, we affirm the April 11, 2012, order of the Workers' Compensation Appeal Board.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge