F. Johnson v. WCAB (Abington Memorial Hospital) ( 2014 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Franklin Johnson, :
Petitioner :
:
v. : No. 2074 C.D. 2013
: SUBMITTED: June 6, 2014
Workers’ Compensation Appeal :
Board (Abington Memorial Hospital), :
Respondent :
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE LEADBETTER FILED: August 13, 2014
Claimant Franklin Johnson petitions for review of an order of the
Workers’ Compensation Appeal Board that affirmed the decision of a Workers’
Compensation Judge (WCJ) to deny his petition to review the utilization review
(UR) determination that all treatment rendered to him by Shirley Dressler, D.C.,
after May 2, 2011, was not reasonable or necessary. In addition, we have before us
Employer Abington Memorial Hospital’s motion to dismiss Claimant’s petition for
review for failure to preserve issues for appellate review.1 For the reasons that
follow, we grant Employer’s motion to dismiss Claimant’s petition for review.
In January 2010, Claimant sustained a right shoulder rotator cuff tear
in the course of his employment as a floor technician for Employer. In April 2010,
Employer issued a notice of compensation payable, accepting the injury and
1
In February 2014, this Court directed that Employer’s January 2014 motion to dismiss be
decided with the merits of the petition for review.
acknowledging that it occurred while Claimant was mopping a floor.
Subsequently, Employer filed two utilization review requests, one seeking to
ascertain the reasonableness and necessity of Dr. Dressler’s chiropractic treatment
and the other challenging the treatment of Claimant’s treating physician, Richard
S. Glick, D.O. UR reviewer Saul Jeck, D.O., determined that Dr. Glick’s treatment
was reasonable and necessary and the WCJ affirmed. UR reviewer Gregg J.
Fisher, D.C., however, determined that Dr. Dressler’s treatment was neither
reasonable nor necessary in that she: 1) initiated chiropractic treatment without
first taking a detailed history from Claimant; 2) failed to conduct an initial
examination; and 3) failed to perform any periodic re-examinations.
In his subsequent petition to review the UR determination regarding
Dr. Dressler’s treatment, Claimant submitted a letter from her opining that the
disputed treatment was reasonable and necessary in that Claimant’s orthopedic
surgeon, Brian Sennett, M.D., prescribed the chiropractic treatment, re-evaluated
Claimant at intervals, concluded that the patient was showing progress and,
accordingly, prescribed further chiropractic treatment. The WCJ affirmed the UR
determination, rejecting Dr. Dressler’s letter as neither credible nor convincing.
Noting that Dr. Dressler did not refute Dr. Fisher’s determination that she failed to
perform the aforementioned tasks, the WCJ also observed that, in her letter, Dr.
Dressler did not include a history of Claimant’s illness, a description of the
treatment provided or any anticipated treatment. The Board affirmed and
Claimant’s timely petition for review followed. We first address Employer’s
motion to dismiss Claimant’s petition for review.
Employer maintains that Claimant failed to raise the issues addressed
in paragraphs three and four of the petition for review, wherein he asserted that 1)
2
the UR organization failed to obtain germane medical records from his treating
physicians, who were prescribing the chiropractic treatment at issue and
monitoring his progress as a result of that treatment; and 2) the WCJ erred in
failing to consider that Dr. Dressler was simply the practitioner providing the
therapy treatment, prescribed by and monitored by those physicians. Accordingly,
alleging that Claimant failed to raise any issues beyond his general contention that
the WCJ’s decision was not supported by substantial evidence, Employer argues
that we should dismiss the petition for review.2 We agree.
In his appeal from the WCJ’s decision, Claimant listed, by number,
Findings of Fact Nos. 3, 5, 11 and 14 through 17 as the ones that he alleged were in
error. Following that listing, he included the following allegations: “The Judge’s
findings are not based upon substantial competent evidence. Further, the Judge’s
findings show a capricious disregard for the evidence of record.” Appeal from
WCJ’s Decision at 1; Reproduced Record (R.R.) at 224a. As for any alleged errors
of law, Claimant alleged the following: “Conclusion of Law #1. The conclusion of
law contains legal errors.”3 Id. Consequently, in characterizing Claimant’s
argument on appeal, the Board stated as follows: “On appeal, Claimant contends
generally that the WCJ’s decision is not supported by substantial evidence and that
2
Claimant argues that Employer waived its right to file a motion to dismiss in that it failed
to do so below. We disagree. In McGaffin v. Workers’ Compensation Appeal Board (Manatron,
Inc.), 903 A.2d 94, 102 n.14 (Pa. Cmwlth. 2006), this Court held that, where the claimant in the
appeal documents before the Board failed to raise the issue on appeal, it was irrelevant that the
employer on appeal to this Court did not argue that he failed to preserve the issue below.
Pursuant to Pennsylvania Rule of Appellate Procedure 1551, where an issue is not preserved
before the government unit, this Court cannot hear it. In other words, “[o]ur scope of review,
under the rules of appellate procedure, cannot be enlarged by a party’s decision.” Id.3
In Conclusion of Law No. 1, the WCJ concluded that Employer proved by substantial,
competent and credible evidence that Dr. Dressler’s treatment was unreasonable and
unnecessary.
3
the WCJ capriciously disregarded certain unspecified evidence.” Board’s Decision
at 1 (footnote omitted) (emphasis added).
The pertinent regulation, 34 Pa. Code § 111.11(a)(2), provides that an
appeal filed with the Board must contain “[a] statement of the particular grounds
upon which the appeal is based, including reference to the specific findings of fact
which are challenged and the errors of law which are alleged.” The regulation
further provides that, “[g]eneral allegations which do not specifically bring to the
attention of the Board the issues decided are insufficient.” Id. Where, as here, the
party taking the appeal merely listed, by number, the findings of fact that allegedly
were not supported by substantial competent evidence and the conclusions of law
that allegedly contained errors of law, this Court has held that the party failed to
comply with the regulation. Matticks v. Workers’ Comp. Appeal Bd. (Thomas J.
O’Hora Co.), 872 A.2d 196, 202 (Pa. Cmwlth. 2005). See also Jonathan Sheppard
Stables v. Workers’ Comp. Appeal Bd. (Wyatt), 739 A.2d 1084, 1089 (Pa. Cmwlth.
1999) (holding that employer failed to comply with 34 Pa. Code § 111.11(a)(2)
where it cryptically noted “2-10” on the appeal form, thereby failing to specify the
errors of law committed by the WCJ or why the decision did not conform with the
law) and McGaffin v. Workers’ Comp. Appeal Bd. (Manatron, Inc.), 903 A.2d 94,
101-02 (Pa. Cmwlth. 2006) (where the issues that claimant raised and preserved in
his appeal documents did not include the issue he raised on appeal, claimant failed
to comply with 34 Pa. Code § 111.11(a)(2) and his petition for review was
dismissed).
4
Accordingly, we grant Employer’s motion to dismiss Claimant’s
petition for review for failure to preserve issues for appellate review.4
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Judge
4
In any event, had we addressed the merits, we would have affirmed. In Womack v.
Workers’ Compensation Appeal Board (School District of Philadelphia), 83 A.3d 1139, 1149
(Pa. Cmwlth. 2014), appeal denied, ___ A.3d ___ (Pa. 2014), we addressed a somewhat
analogous situation where the UR reviewer, in part, based his determination that the disputed
chiropractic treatment was not reasonable or necessary on the provider’s failure to provide key
information. We stated as follows:
The Bureau’s regulations make clear that a [UR
organization] may conclude that treatment is not reasonable and
necessary when a provider fails to submit records regarding a
claimant’s treatment. See 34 Pa. Code § 127.464. Implicit in such
a provision is the notion that a reviewer requires sufficient
information regarding the nature of the treatment in order to render
a recommendation, and that, when a provider fails to submit
information with sufficient detail regarding the purposes,
objectives, and outcome of treatment, a reviewer may reach a
negative conclusion regarding the need for and reasonableness of
treatment based on a lack of sufficient information from the
provider. The WCJ, in turn, is permitted similarly to reach her
own negative inferences . . . .
Womack, 83 A.3d at 1149. The fact that Dr. Dressler was treating Claimant pursuant to
prescriptions from his physicians did not negate the need for her to submit key information in
order for the UR reviewer to ascertain the necessity for and reasonableness of the disputed
treatment. Finally, with regard to any inconsistency in the determinations regarding the
reasonableness and necessity of Dr. Glick’s treatment versus that of Dr. Dressler, we note that
Dr. Glick’s medical treatment included office visits, ultrasound and a home TENS unit. The fact
that one UR reviewer found Dr. Glick’s medical treatment to be reasonable and necessary and
another rejected Dr. Dressler’s chiropractic treatment is irrelevant. Although the treatments were
obviously related in that they were being rendered “in the context of the entire course of care for
the work-related injury,” Seamon v. Workers’ Compensation Appeal Board (Sarno & Sons
Formals), 761 A.2d 1258, 1262 (Pa. Cmwlth. 2000), that did not dictate that any and all disputed
treatments necessarily have the same UR outcome.
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Franklin Johnson, :
Petitioner :
:
v. : No. 2074 C.D. 2013
:
Workers’ Compensation Appeal :
Board (Abington Memorial Hospital), :
Respondent :
ORDER
AND NOW, this 13th day of August, 2014, we hereby GRANT
Respondent’s motion to dismiss the petition for review of Petitioner Franklin
Johnson.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Judge