L. Mason v. WCAB (Philadelphia AFL-CIO Hospital Assoc. & Rodriguez) ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Leroy Mason, :
Petitioner :
: No. 655 C.D. 2018
v. :
: Submitted: December 21, 2018
Workers’ Compensation Appeal Board :
(Philadelphia AFL-CIO Hospital :
Association and Rodriguez), :
Respondents :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: February 13, 2019
Leroy Mason (Claimant) petitions for review from the April 12, 2018
order of the Workers’ Compensation Appeal Board (Board), which affirmed the
decision of a workers’ compensation judge (WCJ) to the extent the WCJ granted
Claimant’s petitions for review of a utilization review determination (UR review
petition), and reversed the WCJ insofar as the WCJ granted Claimant’s penalty
petition.1 Claimant contends that the Board erred in determining that the record lacked
1
Philadelphia AFL-CIO Hospital Association (Employer) did not file an appeal to this Court
challenging the aspect of the Board’s decision that affirmed the WCJ’s grant of Claimant’s UR review
petitions. Generally speaking, the disposition of these petitions are of minimal relevance to the issue
that Claimant raises on appeal. As such, the Court will discuss the UR review petitions in a relatively
brief manner and with the purpose of providing a contextual background of the overall nature of this
dispute.
substantial evidence to support the WCJ’s finding that unpaid medical expenses were
causally related to the accepted work injury and that Employer engaged in an
unreasonable contest.
On March 11, 2009, Claimant was discarding medical records into a
dumpster when he twisted his lower back. Employer issued a Notice of Compensation
Payable (NCP) on March 26, 2009, accepting liability for a lower back strain.
Following his initial treatment with Employer’s panel of medical providers, Claimant
began treatment with George Rodriguez, M.D., and Daisy Rodriguez, M.D.
(Providers), in 2009 because he felt that the panel providers were not rendering
beneficial treatment. (WCJ’s Finding of Fact (F.F.) Nos. 1, 14; Reproduced Record
(R.R.) at 56a-57a.)
On October 7, 2015, and October 8, 2015, Claimant and Providers filed
UR review petitions, requesting that a WCJ rule upon the reasonableness and necessity
of the treatments administered by Providers.2 By way of background, Employer filed
several requests for utilization review, contesting the procedures and treatments of
Providers during the time frame from August 16, 2011, and ongoing, and from June
26, 2015, and ongoing. The reviewers issued determinations regarding the number of
monthly office visits and also with respect to treatments such as topical formulated pain
creams, physical capabilities evaluations, therapeutic exercise, trigger point injections,
2
The utilization review process is the exclusive way to challenge medical bills. Upon receipt
of a request for utilization review, a reviewer makes the determination on the merits whether the
treatment under review is reasonable or necessary. If the health care provider, employer, claimant,
or insurer disagrees with the reviewer’s determination, that person or entity may seek review by a
WCJ, and the hearing before the WCJ is a de novo proceeding. County of Allegheny v. Workers’
Compensation Appeal Board (Geisler), 875 A.2d 1222, 1226-27 (Pa. Cmwlth. 2005).
However, a reviewer may not decide the causal relationship between the treatment under
review and the claimant’s work-related injury. Instead, such a challenge must be addressed to and
decided by a WCJ in the first instance. Id. at 1226 n.10.
2
acupuncture, chiropractic treatment, pain medications, and other forms of physiatric
treatment. In the UR review petitions, Claimant and Providers sought review of
additional procedures and treatment including, but not limited to, moxibustion, gua sha,
cupping and strapping, cold laser treatment, and neuromuscular facilitation. (F.F Nos.
4-8, 12-13, 15; see Board’s decision at 1-3, 9-11.)
In addition to filing the UR review petitions, Claimant filed a penalty
petition on March 29, 2016, alleging that Employer illegally and unilaterally failed to
pay medical bills that were not subject to any utilization review. Employer denied the
material allegations of the petitions, and the WCJ convened a hearing. (F.F. Nos. 10-
11; R.R. at 1a-7a.)
At the hearing, Claimant testified credibly that he suffers from chronic
lower back pain and started to feel better when placed under the care of Providers. In
a medical report authored in connection with a July 7, 2015 evaluation, Dr. George
Rodriguez indicated that Claimant continues to experience constant and severe pain in
his lower back and that he complains of severe sternoclavicular joint area pain and
paresthesias of the right lower extremity. (F.F. Nos. 14, 25; R.R. at 58a.)
Based on the July 7, 2015 report of Dr. George Rodriguez, the WCJ found
that the relevant diagnoses for utilization review were, inter alia, lumbosacral
strain/sprain, lumbosacral radiculopathy, and lumbar HNP (herniated nucleus
pulposus). In his report, Dr. George Rodriguez determined that these conditions were
“secondary” to Claimant’s work injury,3 noting that the diagnosis of lumbosacral
radiculopathy was made based on the results of an MRI dated December 15, 2009, and
that the diagnosis of lumbar HNP was made based on the results of an EMG and NCS
(nerve conduction) study dated March 11, 2010. Dr. George Rodriguez included the
3
In the medical sense, the term “secondary” means “dependent or consequent on another
disease or condition.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2050 (1986).
3
diagnosis codes for these diagnoses as follows: lumbosacral sprain/strain (846.0);
lumbosacral radiculopathy (724.4); and lumbar HNP (722.10). (F.F. Nos. 2-3, 14-15;
Board’s decision at 10-11; R.R. at 59a-60a.)
Claimant and Providers also submitted a summarized list of medical bills
that remained unpaid by Employer, which are marked as Items C, D, F, G, H, I, J, K,
and L on exhibit H-3. With the exception of Items J, K, and L, which reflect treatment
provided by Patrick Murphy, D.O., Providers rendered the treatments referenced in the
remaining Items. Claimant also introduced approximately 100 pages of supporting
medical documents, known as HCFA billing statements. These documents show what
procedures were performed, contain diagnosis pointers for each procedure in
alphabetical format, and then correlate the pointers/procedure to the pertinent
diagnoses. For example, over 90% of the procedures were marked with pointers A, B,
and oftentimes C, and were coded diagnostically as 722.10 (A—lumbar HNP), 846.0
(B—lumbosacral sprain/strain); 724.4 (C—lumbosacral radiculopathy). A very few of
the procedures also contained an additional pointer of D, which was marked
diagnostically with a code of 781.2 (gait abnormality). In his report, Dr. Rodriguez
explained that gait abnormality is a condition that was “secondary” to Claimant’s work
injury and back pain, noting that this diagnosis was made after a consultation and an
office visit with another doctor. (F.F. No. 16; R.R. at 60a, 63a-170a.)
During the hearing, Employer stipulated that its insurance carrier received
the medical bills at issue. Employer did not provide evidence that it paid these bills or
otherwise advance a defense that would excuse payment. Employer did not adduce
evidence to demonstrate that the medical bills or diagnoses were not causally related
to Claimant’s accepted work injury and did not submit a brief during the briefing
schedule set forth by the WCJ. (F.F. Nos. 11, 29.)
4
Concerning the UR review petitions, the WCJ reviewed the matter in a de
novo capacity and rejected the opinions of the reviewers where inconsistent with the
testimony and reports of Claimant and Providers. Ultimately, the WCJ found that all
of the procedures and treatments rendered by Providers were reasonable and necessary,
and she granted Claimant’s UR review petitions. (F.F. Nos. 19-26; WCJ’s Conclusion
of Law (COL) No. 8.)
Regarding the penalty petition, the WCJ, in a decision dated March 17,
2017, found that all of the treatment and procedures reflected in the unpaid medical
bills were causally related to the accepted work injury. The WCJ based this
determination on the diagnoses codes on the HCFA billing statements and the opinion
of Dr. George Rodriguez that the diagnoses of lumbosacral sprain/strain, lumbosacral
radiculopathy, lumbar HNP, and gait abnormality were connected to Claimant’s work
injury. The WCJ found that Employer did not file a utilization review request with
respect to the treatment and bills provided by Dr. Murphy. The WCJ further found that
all of the treatment and bills provided by Providers were rendered before any utilization
review effective dates; therefore, these treatments were presumptively reasonable and
necessary and, in any event, were not shown to be unrelated to the work injury. The
WCJ additionally found that Employer, having failed to brief, argue, or submit
evidence in opposition, did not mount a contest to Claimant’s penalty petition. (F.F.
Nos. 3, 15, 26-29.)
Accordingly, the WCJ concluded that Claimant met his burden of proof
in the penalty petition and that Employer failed to establish that no violation of the
Workers’ Compensation Act (Act)4 had occurred. For relief, the WCJ ordered
Employer to pay the medical bills, with 10% interest, and awarded a penalty of 50% of
4
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
5
the total amount of the bills owed. The WCJ also directed Employer, as a result of its
unreasonable contest, to pay counsel fees of 20% of the outstanding medical bills,
which the WCJ ordered to be chargeable for the period of time occurring between the
filing and resolution of the instant petitions. (COL Nos. 9-12; WCJ’s Order.)
Employer appealed to the Board. With respect to Claimant’s UR review
petitions, the Board affirmed the WCJ’s grant of those petitions. See supra note 1. The
Board, however, reversed the WCJ to the extent that she granted Claimant’s penalty
petition. The Board reasoned, in pertinent part, as follows:
[T]he WCJ’s finding that all of the subject medical expenses
are causally related is not based on substantial evidence.
Because an [e]mployer is subject to penalties for unpaid
medical expenses if a WCJ determines the treatment is work-
related, the causal relationship between the injury and
treatment was at issue in the [p]enalty [p]etition. In the
present matter, the accepted injury is a lumbar strain/sprain.
The WCJ accepted Dr. Rodriguez’s report stating Claimant
is being treated for a herniated lumbar disc, lumbosacral
sprain/strain, lumbosacral radiculopathy, [and] gait
abnormality[.] She then found that all of the subject medical
expenses [were] causally related to the accepted lumbar
strain because each of the HCFA forms placed in evidence
includes the diagnosis code identified by Dr. Rodriguez as
the diagnosis code for a lumbosacral sprain/strain.
. . . The WCJ did not make a finding expanding the
description of injury to include all of the conditions being
treated. She found that all of the treatment was causally
related to the accepted injury. We cannot agree that in a case
such as this, where [Claimant] is being treated with numerous
modalities for multiple diagnoses and each HCFA form bears
multiple diagnosis codes, a reasonable person would accept
the presence of the codes for the accepted injury as adequate
to support the conclusion that all of the treatment is causally
related to the 2009 lumbar strain/sprain. We therefore
reverse the grant of the [p]enalty [p]etition.
(Board’s decision at 18.)
6
Because the Board determined that Claimant did not prevail on the
penalty petition, the Board reversed the WCJ’s imposition of counsel fees for an
unreasonable contest. Id. at 19.
Claimant now appeals to this Court.5 He contends that the Board
essentially substituted its judgment for that of the WCJ and, in so doing, usurped the
WCJ’s role as fact-finder. Claimant points out that all of the medical bills contain the
diagnostic code for lumbar strain/sprain and notes the apparently related diagnoses of
lumbosacral strain/sprain, lumbosacral radiculopathy, lumbar HNP, and gait
abnormality. For these reasons, Claimant submits that the WCJ properly weighed the
evidence and determined that the treatments and procedures listed in the HCFA billing
statements were directly related to the accepted work injury.6
It is a fundamental tenet of workers’ compensation law that the WCJ, as
fact-finder, has complete authority over questions of witness credibility and evidentiary
weight, and neither the Board nor this Court may reweigh the evidence or the WCJ’s
credibility determinations. Sell v. Workers’ Compensation Appeal Board (LNP
Engineering), 771 A.2d 1246, 1250-51 (Pa. 2001); Williams v. Workers’ Compensation
Appeal Board (USX Corp.-Fairless Works), 862 A.2d 137, 143 (Pa. Cmwlth. 2004).
In ascertaining whether the record contains substantial evidence to support a WCJ’s
finding of fact, we view the evidence in the light most favorable to the party who
prevailed before the WCJ, and give that party the benefit of all inferences that can be
5
Our scope of review is limited to determining whether constitutional rights have been
violated, whether an error of law has been committed, or whether findings of fact are supported by
substantial evidence. Anderson v. Workers’ Compensation Appeal Board (Penn Center for Rehab),
15 A.3d 944, 947 n.1 (Pa. Cmwlth. 2010).
6
By per curiam order dated November 1, 2018, this Court, inter alia, precluded Employer
from filing a brief in this matter due to Employer’s failure to comply with our October 10, 2018 order
directing it to file a brief within 14 days.
7
reasonably drawn from the evidence. Waldameer Park, Inc. v. Workers’ Compensation
Appeal Board (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003).
In CVA, Inc. v. Workers’ Compensation Appeal Board (Riley), 29 A.3d
1224 (Pa. Cmwlth. 2011), this Court set forth the pertinent law with respect to a penalty
petition alleging that an employer failed to timely pay medical bills as follows:
In a penalty petition proceeding, the claimant has the burden
of proving that a violation of the Act occurred. An employer
is obligated to pay for reasonable medical expenses that are
causally related to the work injury. Under Section
306(f.1)(5) of the Act, 77 P.S. §531(5), the employer must
pay the claimant’s medical bills within 30 days of receiving
them, unless the employer disputes the reasonableness and
necessity of the treatment. If the employer believes that the
treatment is not reasonable and necessary, it must submit the
bills for a utilization review or face the possibility of a
penalty. In addition, if the employer refuses to pay bills
because it believes they are not causally related to the work
injury, the employer runs the risk of being assessed a penalty
if the WCJ determines that they are, in fact, causally
related.[7]
Id. at 1227 (internal citations omitted); see Listino v. Workmen’s Compensation Appeal
Board (INA Life Insurance Company), 659 A.2d 45, 48 (Pa. Cmwlth. 1995).
In DeJesus v. Workmen’s Compensation Appeal Board (Friends
Hospital), 623 A.2d 397 (Pa. Cmwlth. 1993), the referee8 found that the claimant
sustained a work-related injury in the form of a herniated disc at L4-L5 and a lumbar
pathology at L5-S1. The employer argued that the referee properly excluded physical
therapy at Riverside Medical Center as a payable medical expense because the
7
As stated in CVA, rather than run the risk of chance, if an employer believes that treatments
are not related to a claimant’s accepted work-related injury, the employer has a remedy in that it can
file a petition to review the medical treatment. Id. at 1229.
8
The office of referee was changed to the office of WCJ by the Act of July 2, 1993, P.L. 190,
as set forth in section 401 of the Act of June 15, 1915, P.L. 736, as amended, 77 P.S. §701.
8
treatment was unrelated to the claimant’s accepted work injury. Ultimately, we
remanded the case to the referee for additional fact-finding. In doing so, this Court
noted that we “carefully reviewed the record, especially the medical bills from
Riverside. These bills state [the claimant’s] diagnosis generally as ‘back injury,’ or
‘sciatica.’ . . . Without more information, these diagnoses would appear to relate to [the
claimant’s] work-related injury.” Id. at 399.
In CVA, this Court upheld the WCJ’s determination that the employer
violated the Act by unilaterally refusing to pay the claimant’s medical bills. In that
case, the employer accepted liability for a left knee injury and denied payment for
Therapeutic Magnetic Resonance (TMR) treatments because it determined that the
treatments were not causally related to the accepted work injury. We stated that the
claimant was not obligated to produce medical testimony to establish a causal
relationship between the injury and medical treatment, and that a WCJ could rely upon
medical reports and the HCFA billing statements in making such a determination. In
summarily rejecting the employer’s argument that the TMR treatments were not
directly related to the claimant’s work injury, we concluded that the claimant “injured
his left knee and the TMR treatment was for the left knee injury. Thus, a causal
relationship was established.” CVA, 29 A.3d at 1228.
In The Body Shop v. Workers’ Compensation Appeal Board (Schanz), 720
A.2d 795 (Pa. Cmwlth. 1998), the claimant received benefits pursuant to an NCP that
indicated he suffered from an acute low back strain. The claimant underwent cervical
and lumbar disc surgeries, and the employer refused to pay for the surgeries as well as
other related costs. The claimant petitioned to review medical treatment and/or billing
and also petitioned for penalties. In pertinent part, the WCJ determined that the
claimant had sustained a work-related injury to his lower back and that the lumbar
9
surgery was causally related to the work injury and the diagnosis of a herniated disc.
The WCJ further determined that the employer did not meet its burden of proving that
the medical expenses incurred by the claimant regarding his lower back were not
directly related to his work injury and assessed a penalty against the employer. On
appeal, the Board affirmed.
The employer then petitioned for review with this Court. The employer
argued that the claimant was not entitled to medical benefits for any injury other than
the low back strain that was accepted in the NCP, and that the claimant failed to provide
proper notice that he had suffered a herniated disc. This Court affirmed the imposition
of penalties, and we provided the following reasoning:
Although [the claimant] notified the [employer] that he
suffered from an acute low back strain, and the [NCP]
indicated the same, notice under . . . the Act . . . does not
require that a claimant give an employer an exact diagnosis,
but only a reasonably precise description of the injury.
In this case, when [the claimant] initially was injured and
examined, he was diagnosed with an acute low back strain.
However, after having continued pain and further diagnostic
studies were performed [sic], the diagnosis—not the injury—
changed to a herniated disc. Because the diagnosis of a
herniated disc does not constitute a separate injury but is just
another diagnosis of the initial injury [the claimant’s]
original notice to [the employer] sufficiently alerted it of the
work-related injury to his back and gave it an opportunity to
investigate the reasonableness and necessity of [the
claimant’s] medical bills.
The Body Shop, 720 A.2d at 799 (internal citations omitted).9
9
See also Haslam v. Workers’ Compensation Appeal Board (London Grove Communication),
169 A.3d 704, 710-11 (Pa. Cmwlth. 2017) (“In this case, [e]mployer accepted responsibility for
treatment for [c]laimant’s fractured feet. Thereafter, [c]laimant sought treatment for pain in those
feet. There exists an obvious connection between the injury and the pain. For [e]mployer to avoid
10
In Mohawk Industries, Inc. v. Workers’ Compensation Appeal Board
(Weyant) (Pa. Cmwlth., No. 197 C.D. 2013, filed September 18, 2013) (unreported),10
the claimant sustained an injury after he fell to the ground, and the employer filed a
Notice of Compensation Denial (NCD) accepting “upper back and neck pain” as a
work-related injury for medical purposes only. Id., slip op. at 2. Thereafter, the
claimant, inter alia, filed a penalty petition, alleging that the employer violated the Act
by failing to timely pay for medical treatment of his work injury as accepted through
the NCD. During the hearing, the claimant presented the testimony of a medical doctor
who stated that, as a result of his fall at work, the claimant’s preexisting spinal stenosis,
degenerative disc disease, and bone spurs were aggravated and that the claimant
developed a disc herniation. The medical doctor also opined that the claimant’s work-
related injury necessitated surgical procedures, namely an anterior cervical discectomy
fusion and plating. The WCJ accepted this testimony as credible and imposed penalties
on the employer.
responsibility for the medical expenses resulting from treatment of the pain in [c]laimant’s feet,
[e]mployer must prove that the treatment is for an injury that is distinct from the acknowledged
injury.”); Kurtz v. Workers’ Compensation Appeal Board (Waynesburg College), 794 A.2d 443, 448
(Pa. Cmwlth. 2002) (“Claimant’s head injury was acknowledged by [e]mployer through the NCP, []
any natural and probable symptoms arising from [c]laimant’s compensable head injury are presumed
to be related to that injury and it is Employer’s burden to establish otherwise. Claimant complained
of dizziness and headaches and a burning sensation that were in the same area as his original head
pain; just two inches from the scar left by his surgery . . . . It is difficult to imagine that similar pain
appearing in such close proximity to the area of the original injury is not a natural and probable result
of the original injury and, therefore, obviously related to such injury . . . . We, therefore, hold that
[c]laimant’s new symptoms obviously appear to be related to the original injury and it was
[e]mployer’s burden, under these facts, to establish that the symptoms are indeed unrelated to the
original compensable injury.”).
10
Mohawk Industries, an unpublished opinion, is cited for its persuasive value in accordance
with section 414(a) of the Commonwealth Court’s Internal Operating Procedures. 210 Pa. Code
§69.414(a).
11
On appeal to the Board, the employer argued that the penalties were
improper because it never accepted liability for the claimant’s particular diagnosed
injuries. Citing The Body Shop, the Board held that when an injury is recognized by
an employer and further medical attention reveals an additional diagnosis to the same
part of the body, the employer bears the burden of proving that the new diagnosis is
not work-related. Having determined that the WCJ did not err in finding that the
diagnoses and surgery were causally related to the claimant’s work injury, the Board
concluded that the employer was properly subjected to penalties for refusing to pay the
medical expenses associated with the surgery.
On further appeal to this Court, the employer renewed its argument that
by issuing the NCD, it only accepted liability for medical expenses for upper back and
neck pain and treatment resulting from the claimant’s fall. This Court in Mohawk
Industries found no merit in this contention, and we determined that the WCJ correctly
imposed penalties on the employer:
Here, [the employer] unilaterally refused to pay for [the
claimant’s] surgery solely on the belief that it was not
causally related to [the claimant’s] injury and thereby
assumed the risk that the WCJ would later find otherwise.
Because the cervical disc herniation and aggravation of [the
claimant’s] pre-existing spinal stenosis, degenerative disc
disease, and bone spurs were caused by [the claimant’s]
work-related neck and back injury, which [the employer]
acknowledged through the NCD, [the employer] violated
[the Act] by refusing to timely pay for the treatment of these
conditions[.]
Id., slip op. at 7-8 (internal citations omitted).
In St. Joseph’s Center v. Workers’ Compensation Appeal Board
(Williams) (Pa. Cmwlth., No. 2062 C.D. 2010, filed August 23, 2011) (unreported), the
employer issued an NCP and supplemental agreement accepting liability, inter alia, for
12
a left rotator cuff sprain and refused to pay bills for surgical and medical treatment. At
the hearing, the claimant’s medical expert testified credibly that the claimant’s rotator
cuff sprain “resulted in a partial tear of the rotator cuff as well as subacromial
inflammation or impingement, for which [] surgery and subsequent treatment was
necessary.” Id., slip op. at 30. The WCJ found that the surgery and related expenses
were causally related to the claimant’s accepted work-related injury. On appeal to this
Court, the employer argued that “it did not violate the Act when it did not pay for [the
claimant’s] rotator cuff surgery because it was treatment for a non-acknowledged
injury,” and that “the WCJ improperly expanded [the claimant’s] injury into a
surgically treatable condition.” Id. Relying on The Body Shop, we rejected these
contentions and concluded that the employer violated the Act because the claimant’s
“injury did not change but, rather, the diagnosis of that injury changed after [the
claimant] obtained a second opinion” from another doctor. Id.Upon review of this case law, we conclude that the Board erred as a matter
of law in reversing the WCJ’s order inasmuch as the WCJ ordered Employer to pay
penalties. Here, through the NCP, Employer accepted liability for a lower back strain.
Notably, there is no dispute regarding whether the particular treatments provided by
the Providers, as listed in the HCFA billing statements, were reasonable and necessary
to the diagnoses rendered by Dr. George Rodriguez. The evidence demonstrates,
instead, that the procedures were administered to treat and remedy Claimant’s back
injury and, as such, indicates that there is a causal relationship between the treatments
and work-related injury. See R.R. at 61a-170a; CVA, 29 A.3d at 1228 (“Employer
purports to object to the TMR treatment as not related to [c]laimant’s work injury.
However, [c]laimant injured his left knee and the TMR treatment was for the left knee
injury. Thus, a causal relationship was established.”).
13
Moreover, based on the report of Dr. George Rodriguez, the WCJ could
reasonably find that Dr. George Rodriguez, after conducting further testing, rendered
substituted, alternative, or overlapping diagnoses of lumbosacral strain/sprain,
lumbosacral radiculopathy, and lumbar HNP. From the face of the report, the WCJ
could infer that these conditions were “secondary” to, dependent upon, or, in other
words, directly related to or stemming from the injury accepted in the NCP. See The
Body Shop, 720 A.2d at 799 (“[A]fter having continued pain and further diagnostic
studies were performed [sic], the diagnosis—not the injury—changed to a herniated
disc.”). Further, aside from the fact that an obvious connection exists between the
designation of a lower back strain injury in the NCP and the diagnosis of lumbosacral
strain/sprain, the above inference is further buttressed by the fact that the diagnoses of
lumbosacral strain/sprain, lumbosacral radiculopathy, and lumbar HNP all pertain to
the lower back region where the work-related injury occurred. See DeJesus, 623 A.2d
at 399 (concluding that where the work-related injury was a herniated disc and lumbar
pathology, the diagnoses of back injury and sciatica “appear to relate to [the claimant’s]
work related injury”). Finally, in an overwhelming vast majority of the HCFA billing
statements, the listed diagnostic pointers reference the codes for all three of these
conditions/diagnoses, lumping them together in a manner that strongly suggests that
they are diagnoses for the same, singular injury; that is, Claimant’s work-related injury
as acknowledged in the NCP.
Reviewing the evidence in the light most favorable to Claimant, as we
must, we conclude that the WCJ had an adequate evidentiary basis upon which she
could infer that the diagnoses stated in the report and HCFA billing statements were
causally related to Claimant’s work-related injury. On comparison, this case bears
remarkable resemblance to The Body Shop, where low back strain was the injury
14
accepted in the NCP and the diagnosis was changed to a herniated disc that required
surgical intervention, and Mohawk Industries, where the NCD accepted payment of
medical expenses for upper back and neck pain and the diagnoses were changed to a
disc herniation and aggravation of preexisting spinal stenosis, degenerative disc
disease, and bone spurs. In both The Body Shop and Mohawk Industries, this Court
determined that the diagnoses did not constitute a separate injury but, rather, were
simply different or other diagnoses of the initial injury. And, as this Court stated in St.
Joseph’s Center, in such a situation, a claimant need not seek to amend or expand the
NCP to include additional injuries, and the Board’s conclusion to the contrary was in
error. Ultimately, our case law refutes the Board’s analysis and establishes that the
Board, in essence, engaged in its own form of fact-finding, by reweighing and
downplaying the proof submitted by Claimant and Providers to determine that it did
not meet the standard of substantial evidence.
Therefore, because the evidence demonstrated that Employer unilaterally
refused to pay medical expenses for a work-related injury, we conclude that the WCJ’s
imposition of penalties for a violation of the Act was proper, as well as its award of
attorney’s fees due to Employer’s unreasonable contest. See The Body Shop, 720 A.2d
at 799 (concluding that because “an employer’s unilateral refusal to pay medical
expenses for a work-related injury without filing a review petition is a violation of . . .
the Act . . . the imposition of a [] penalty was proper,” and holding that “because [the
employer’s] refusal to pay [the claimant’s] medical bills was a violation of the Act,
there could be no reasonable contest and the award of counsel fees was also proper”).
15
Accordingly, we reverse the Board’s order to the extent the Board
reversed the WCJ’s order granting the penalty petition filed by Claimant.
________________________________
PATRICIA A. McCULLOUGH, Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Leroy Mason, :
Petitioner :
: No. 655 C.D. 2018
v. :
:
Workers’ Compensation Appeal Board :
(Philadelphia AFL-CIO Hospital :
Association and Rodriguez), :
Respondents :
ORDER
AND NOW, this 13th day of February, 2019, the April 12, 2018 order
of the Workers’ Compensation Appeal Board (Board) is reversed insofar as the
Board reversed the March 17, 2017 decision of the workers’ compensation judge
granting the penalty petition filed by Leroy Mason. The matter is remanded to the
Board for further proceedings consistent with this opinion.
Jurisdiction relinquished.
________________________________
PATRICIA A. McCULLOUGH, Judge