F. Hughes v. Wawa, Inc. (WCAB) ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Frank Hughes, :
Petitioner :
: No. 333 C.D. 2021
v. :
: Submitted: November 4, 2021
Wawa, Inc. (Workers’ Compensation :
Appeal Board), :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: December 13, 2021
Frank Hughes (Claimant) petitions for review of the March 8, 2021 and
March 30, 2021 orders of the Workers’ Compensation Appeal Board (WCAB),
affirming the decision of a Workers’ Compensation Judge (WCJ) that denied his
petition for review of two utilization review (UR) determinations and penalty
petition, and denying his petition for rehearing. We affirm.
Factual and Procedural History
On April 1, 2000, Claimant sustained a work-related injury while in the
course and scope of his employment as a truck driver with Wawa, Inc. (Employer).
A notice of compensation payable described Claimant’s work injury as a low back
herniation. (Reproduced Record (R.R.) at 341a.) The parties entered into a
compromise and release (C&R) agreement, which was approved by the WCJ on
August 24, 2011. The C&R agreement described the compensable injury as herniated
discs at L4-5 and L5-S1, adjustment reaction with mixed anxiety and depressed
mood, and pain disorder. The medical portion of Claimant’s workers’ compensation
claim remained open with Employer continuing to be responsible for payment of
medical benefits determined to be reasonable, necessary, and related to Claimant’s
work injury. Id. at 341a.
UR Request - Treatment by Dr. Davis
On April 13, 2018, Employer, through its third-party administrator, AIG
Claims, Inc., filed a request for a UR determination1 regarding the treatment rendered
to Claimant by Dr. Christopher Davis, who is board certified in pain management and
family medicine, for treatment after April 12, 2018. Specifically, the request for a
UR determination sought the reasonableness of the number and frequency of
Claimant’s office visits to Dr. Davis, and prescriptions for Oxycontin 60 mg,
Oxycontin 80 mg, Valium 10 mg, Sonata 10 mg, MiraLAX powder, and
amitriptyline.
On May 15, 2018, the reviewer, Sarah Reinhardt, D.O., who is board
certified in family medicine, circulated a UR determination regarding the
reasonableness and necessity of the treatment of Dr. Davis. Dr. Reinhardt found the
challenged treatment reasonable and necessary, in part. She found that office visits
more than once per month were unreasonable and unnecessary, and that although
Oxycontin may be justified for Claimant’s diagnoses and complaints, the combined
1
Section 306(f.1) of the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736,
as amended, 77 P.S. §531, requires that disputes regarding the reasonableness and necessity of
medical treatment be submitted for utilization review by a utilization review organization (URO)
authorized by the Department of Labor and Industry to perform such reviews. According to Section
306(f.1)(6)(ii) and (iv) of the Act, 77 P.S. §531(6)(ii) and (iv), the URO is to issue a report and the
report is to be made part of the record before the WCJ, who shall consider it as evidence but is not
bound by it.
2
dose for Claimant’s two prescriptions exceeded recognized medication guidelines and
the Centers for Disease Control and Prevention (CDC) guidelines, and as such, the
Oxycontin prescriptions were not justified during the period under review. Id. at
341a.
UR Request - Treatment by Dr. Sing
On October 23, 2018, Employer requested UR review of treatment by
Dr. Davis’ partner, Robert Sing, D.O., from August 27, 2018, and ongoing, including
office visits, Oxycontin 80 mg, Oxycontin 60 mg, Valium, amitriptyline, MiraLAX,
Elavil, blood/urine testing, and any/all other treatment.
On December 12, 2018, the reviewer, Sean P. Hampton, D.O., issued a
UR determination, finding Dr. Sing’s treatment necessary, in part. Dr. Hampton
found that Claimant’s Oxycontin dosage of 330 morphine milligram equivalents
(MME) far exceeded the CDC guidelines, which recommend limiting the dose to less
than 50 MME per day and avoiding dosing higher than 90 MME per day. Dr.
Hampton further noted that abrupt discontinuation of narcotic medications can result
in health and withdrawal issues, and that a period of six months for weaning would be
reasonable and necessary. He therefore found Oxycontin prescriptions reasonable
and necessary until June 7, 2019, with reduced dosages and frequencies to completion
of weaning, and unreasonable and unnecessary beyond June 7, 2019. Dr. Hampton
also found office visits with Dr. Sing more than one time per month between August
27, 2018, and June 7, 2019, and for more than once every three months after June 7,
2018, to be unreasonable and unnecessary medical treatment. Id. at 341a.
Claimant’s Petitions for Review of UR Determinations
Claimant filed petitions for review of Dr. Reinhardt’s May 15, 2018 UR
determination and Dr. Hampton’s December 12, 2018 UR determination. Id. at 341a-
3
42a. The petitions were consolidated and assigned to a WCJ. The WCJ appointed
William Ingram, D.O., as an impartial physician to examine Claimant and submit a
report.
Claimant’s Penalty Petition
On July 9, 2018, Claimant filed a petition for penalties, alleging that
Employer failed to pay for reasonable and necessary treatment, specifically, $175.00
for treatment by Dr. Davis on May 10, 2017; $175.00 and $25.00 for two visits to Dr.
Sing on October 25, 2017; and $92.00 for treatment by Dr. Davis on March 14, 2018.
(R.R. at 4a.)
Proceedings before the WCJ
Employer presented the deposition testimony of Dr. Reinhardt, who
testified that she reviewed records of Dr. Davis from February 20, 2007, through
April 11, 2018. She also reviewed records of other providers included with Dr.
Davis’s records, as listed in her report.2 (Deposition of Sarah Reinhardt, D.O.,
2
Dr. Reinhardt’s report, dated May 10, 2018, indicated that Dr. Davis’s records included
records of other providers: Treatment, Lab, and Medication Records from 02/20/07 through
04/11/18 (250 pages); Treatment Records from Crozer Keystone Health System, 09/14/00 through
11/27/00 (35 dates); Operative Report, Lumbar Microdiscectomy, Vidyadhar S. Chitale, M.D.,
08/07/00; Treatment Records, Neurosurgery, Vidyadhar S. Chitale, M.D., 06/01/01; Treatment
Records, Sleep Disorders Center, Annmarie Gaskin, M.D., 09/17/10; Treatment Records,
Orthopedics, Philip M. Maurer, M.D., 04/19/02, 04/30/02, and 05/21/02; Treatment Records,
Urology, Pierre Ghyad, M.D., 04/21/02; Treatment Records, Orthopedics, M. Darryl Antonacci,
M.D., 10/01/01, 10/29/01, and 12/27/01; Treatment Records, Psychiatry, Timothy J. Michals, M.D,
04/03/07; Treatment Records, Psychology, Jacques Lipetz, Ph.D., 08/30/05 and one not dated;
Treatment Records, Pain Management, John Park, M.D., 10/10/12; Home Medical Services,
Durable Medical Equipment Dispensed (Stimulation Device), 05/22/02; Emergency Room Records,
Fitzgerald Mercy Catholic Medical Center, 06/03/01; Discharge Records, Springfield Hospital,
04/06/17; Discharge Records, Bryn Mawr Hospital, Antonis Pratsos, M.D., 12/11/12; EMG/NCV
(Electromyography/Nerve Conduction Velocity) Report, 09/27/01; X-ray Report, Left Hip, Left
Foot, and Ankle, 04/24/02; and MRI (Magnetic Resonance Imaging) Report, Lumbar Spine,
10/13/08. (R.R. at 268a.)
4
1/12/19, at 17-18; R.R. at 303a-04a.) Dr. Reinhardt stated that Claimant underwent
back surgery approximately four months after the initial injury in April 2000 and saw
multiple physicians until Dr. Davis took over his care. She described the surgery as a
lumbar hemilaminectomy and microdiscectomy at the left L4-5 and a foraminotomy
of L5-S1. Id. at 19-20; R.R. at 305a-06a.
Dr. Reinhardt explained that Dr. Davis treated Claimant for degenerative
disc disease, lumbar radiculopathy, insomnia, and constipation. Id. Dr. Reinhardt
found routine office visits reasonable and necessary at a frequency of once per month.
Id. at 20-21; R.R. at 306a-07a. She found the use of Valium reasonable and
necessary as it can be used for the relief of muscle spasm and found Sonata
reasonable for treatment of insomnia and MiraLAX powder reasonable for chronic
constipation, which is a common side effect of opioid medications. Id. at 20-23; R.R.
at 306a-09a. She found Elavil reasonable and necessary as it is a common
antidepressant and is helpful in the case of neuropathic pain. Id.
Regarding Claimant’s prescription for Oxycontin, Dr. Reinhardt noted
that Claimant’s regimen included taking Oxycontin 80 mg once every 12 hours in the
morning and evening, and Oxycontin 60 mg at noon. Dr. Reinhardt testified,
however, that Oxycontin, 60 mg at noon and 80 mg every two hours was not
reasonable and necessary. Id. at 23; R.R. at 309a. She stated that Oxycontin is a
reasonable analgesic choice for Claimant, but his total combined narcotic dose was
330 MME, which far exceeded the CDC guidelines’ upper limit of 120 MME. Id. at
24; R.R. at 310a. She stated that the potential consequences of Claimant’s dosage
level were increased risk of accidental overdose and respiratory depression and other
side effects from opioids. Id. at 24-25; R.R. at 310a-11a.
5
On cross-examination, Dr. Reinhardt acknowledged that she had patients
who required treatment outside of CDC guidelines, but rarely. Id. at 27; R.R. at 313a.
She also acknowledged that she had never met or treated Claimant, and that Dr. Davis
had been treating Claimant for 12 years. Id. at 28; R.R. at 314a.
Employer also submitted the report of Dr. Hampton. Dr. Hampton
reviewed all treatment by Dr. Sing from August 27, 2018, forward. (Sean P.
Hampton, D.O. Report at 1; R.R. at 277a.) He also reviewed the same medical
records from other treatment providers that were reviewed by Dr. Reinhardt. Dr.
Hampton observed that before surgery, Claimant participated in physical and aquatic
therapy with no sustained pain relief. Id. at 3-4; R.R. at 279a-80a. He continued to
have significant radiating low back pain after surgery despite physical therapy,
epidural steroid injections, and medications. Id. Claimant’s last visit with Dr. Sing
prior to the period under review was October 25, 2017. Id. He returned to Dr. Sing
August 27, 2018, and was seen September 24, 2018, and October 22, 2018, with
diagnoses of chronic low back pain, lumbar radiculopathy, insomnia, anxiety, and
opioid-induced constipation. Id.
Dr. Hampton opined that while Claimant’s diagnoses supported a
prescription for a narcotic pain reliever, the combined total of Oxycontin prescribed
by Dr. Sing “far exceeded typical standards of practice and recognized medication
and CDC guidelines.” Id. at 7; R.R. at 283a. He also noted that abrupt
discontinuation of narcotic medications can result in health and withdrawal issues,
such that a six-month period for weaning would be reasonable and necessary. Id. Dr.
Hampton thus found Oxycontin reasonable and necessary only through June 7, 2019,
with reduced dosages and frequencies to completion of weaning, and Valium, Elavil,
6
MiraLAX, and blood/urine testing reasonable and necessary. Id. at 7-8; R.R. at 283a-
84a.
In opposition to Claimant’s penalty petition, Employer submitted,
among other things, an affidavit of Lorie Myers, a claims representative for AIG
Claims Services, Inc. (R.R. at 322a-33a.) Ms. Myers stated that the denial of the
March 14, 2018 charge for $92.00 was inadvertent, and that the charge had been
repriced and paid. Id. She stated that she was not aware of any additional unpaid
bills related to Claimant’s treatment. Id. She stated that the out-of-pocket payments
by Claimant were for Oxycontin, which had been found unreasonable and
unnecessary from April 12, 2018, forward; the prescription for Oxycontin was denied
because Oxycontin had been found unreasonable and unnecessary, and the
prescription for Narcan was denied because Narcan was not a covered medication.
Ms. Myers’ affidavit appeared to be signed but was not dated or notarized. Id.
Claimant preserved a hearsay objection to the affidavit, noting that the
parties had agreed to depositions and medical records but not to an unsworn affidavit
of the claims representative. Id. at 259a.
The independent medical examination (IME) report of Dr. Ingram, dated
February 25, 2019, was admitted as the WCJ’s exhibit. Claimant’s then-current
medications were Oxycontin 60 mg, 80 mg, and 40 mg, Valium, amitriptyline,
Lipitor, aspirin, and isophiril. (IME Report of William T. Ingram, D.O. at 2; R.R. at
21a.) Dr. Ingram found the non-opioid medications appropriate. Id. at 4; R.R. at 23a.
Regarding Claimant’s Oxycontin dosage, Dr. Ingram commented that the treating
physicians had indicated a desire to increase other types of therapies and decrease the
Oxycontin dose, and Claimant was in favor of it. Id. at 4-5; R.R. at 23a-24a. Dr.
Ingram further stated that the current dosage was not dangerous per se as Claimant
7
was compliant and was carefully monitored, and there were no indications of
inappropriate behavior. Id. Dr. Ingram stated that neuropathic pain modulating
medications such as gabapentin or Lyrica would be a good choice to decrease
narcotic use and that it may take a year to achieve a 33% decrease in Claimant’s
Oxycontin dosage. Id. He described the current narcotic use as “a bit on the high
side, but certainly not dangerous, especially as prescribed and monitored for this
patient.” Id.
Claimant presented the deposition testimony of his treating physician,
Dr. Davis, who is board certified in family practice with a subspecialty board
certification in pain management and hospice and palliative care. Dr. Davis testified
that Claimant had exhausted all conservative treatments, injections, and surgery.
(Deposition of Christopher Davis, D.O. at 16; R.R. at 180a.) He stated that he had
been treating Claimant for about 12 or 13 years and saw Claimant monthly. Id. at 12-
13; R.R. at 176a-77a. Dr. Davis stated that when a patient is prescribed opioids, that
patient is required to sign a contract and undergo random urine screens and pill
counts as necessary. Id. at 13-14; R.R. at 177a-78a. Dr. Davis testified that Claimant
was compliant with all requirements and there had been no diversion or abuse of
medications. Id. at 14; R.R. at 178a.
Dr. Davis testified that the CDC guidelines are recommendations, and
that he strives to have his patients take the lowest effective dose of an opioid
medicine when possible. Id. at 15; R.R. at 179a. He stated that Claimant is a failed
surgery patient who has been stable for several years and compliant with the
recommended safeguards. Id. at 16; R.R. at 180a. He further stated that he has
conversations with Claimant monthly about other non-opioid treatments. Id. at 16-
17; R.R. at 180a-81a. Attempts to decrease the dose caused increased pain and
8
increased symptoms with activity. Id. Dr. Davis did not feel that a different
medication would give Claimant the same pain relief he was getting with the current
medication. Id. at 19; R.R. at 183a. He would entertain changing to a new
medication if and when there was a need for a change. Id.
Regarding Claimant’s penalty petition, Dr. Davis testified that bills for
three dates of treatment had not been paid: May 10, 2017, October 25, 2017, and
March 14, 2018. He stated that any remaining bills that were not paid were incurred
during the period under review. Id. at 9-12; R.R. at 173a-76a. Dr. Davis further
testified that his office customarily submits bills to carriers on HCFA 1500 forms,
with LIBC-9 forms and office notes for the date of service. To the best of his
knowledge, that procedure had been followed. Id. An itemization of charges of
Springfield Sports Medical Center for dates of service beginning April 17, 2007, and
ending November 5, 2018, was made an exhibit to Dr. Davis’s deposition. The
itemization lists the charges as $92.00 for May 10, 2017, $175.00 and $25.00 for
October 25, 2017, and $92.00 for March 14, 2018. (Davis Deposition Ex. C-Davis-
2.)
On cross-examination, Dr. Davis testified that Claimant was first
prescribed Oxycontin on May 14, 2001, by Dr. Sing, who is Dr. Davis’s partner. Id.
at 23-24; R.R. at 187a-88a. Claimant had been on 60 mg at noon and 80 mg every 12
hours for approximately 10 years. Id. Dr. Davis further testified that he tried
decreasing the dose every six months, however, Claimant’s blood pressure increased,
and his symptoms were not managed. Id. at 25; R.R. at 189a.
Dr. Davis agreed that there are potential side effects of long-term use of
opioid medication, including addiction and overdose, and he agreed that opioids are
discouraged for chronic non-malignant back pain. Id. at 26-27; R.R. at 190a-91a. He
9
stated that the recommendations for treatment have changed since Claimant was first
prescribed Oxycontin in 2000 and that a new patient with new back pain would not
necessarily be treated the same way. Id. at 26-28; R.R. at 190a-92a.
Claimant testified that he was still treating with Dr. Davis and Dr. Sing
and saw them once a month. (Deposition of Frank Hughes, 1/21/19, at 6; R.R. at
234a.) He stated that there had been efforts to decrease the dosage of his medication
over the past six or eight months and that he was dealing with it. Id. at 6-7; R.R. at
234a-35a. On cross-examination, Claimant clarified that Dr. Davis and Dr. Sing fill
in for each other and only one prescribes Oxycontin at a time. Id. at 14; R.R. at 242a.
He stated that his Oxycontin regimen had decreased from 80-60-80 to 80-60-60 and
he planned to continue to try to decrease the dosage. Id. at 14-15; R.R. at 242a-43a.
WCJ’s Decision Affirmed by the Board
On August 1, 2019, the WCJ issued a determination crediting Dr.
Hampton’s opinions, Dr. Reinhardt’s opinions, and the opinion of Dr. Ingram, in part.
He also credited Claimant’s testimony as to the benefit derived from the prescription
medications but found that the medical evidence supported the recommended
attempts to wean Claimant off the medications and reduce unnecessary medical visits.
The WCJ found Dr. Reinhardt’s opinion that Oxycontin as prescribed by
Dr. Davis was unreasonable and unnecessary medical treatment to be credible and
convincing based upon her review of the medical records, as outlined in her UR
determination. (WCJ Decision, 8/1/19, Finding of Fact (F.F.) No. 19.) He found that
Dr. Reinhardt was credible and convincing that the Oxycontin as prescribed by Dr.
Davis was unreasonable and unnecessary medical treatment for Claimant’s April 1,
2000 employment injury. Id. The WCJ credited Dr. Reinhardt’s opinion regarding
the risks from opioid medication including accidental overdose and respiratory
10
depression along with her opinion that other treatments could be utilized to prevent
the use of high dosages of Oxycontin to be credible and convincing and supported by
the records she reviewed. Id.
The WCJ credited Dr. Hampton’s opinion that the daily dosage of
Oxycontin prescribed by Dr. Sing exceeded the CDC guidelines and was three times
over the recommended amount and Dr. Hampton’s recommendation of weaning
Claimant from opioid use into the future. (F.F. No. 25.)
The WCJ noted that Dr. Davis acknowledged that Claimant was using a
high level of prescribed medications. He found that there was insufficient evidence
to show attempts to wean Claimant off of Oxycontin. (F.F. No. 20.)
Regarding Dr. Ingram’s opinion, the WCJ found that he was credible, in
part. (F.F. No. 22.) The WCJ found that Dr. Ingram’s finding that the dose of
Oxycontin prescribed to Claimant was reasonable was inconsistent with the
acknowledgement as to the high doses of these opioids in this case. Id. The WCJ
found that Dr. Ingram’s opinion was credible that a reduction of the amount of
Oxycontin prescribed to Claimant was necessary. Id.
Regarding Claimant’s penalty petition, the WCJ found that Claimant
failed to establish a violation of the Act. The WCJ summarized the affidavit of Ms.
Myers in which she indicated that she was unaware of bills that were outstanding.
(F.F. No. 18.) The WCJ noted that although Dr. Davis testified regarding outstanding
bills, this testimony was not supported by documentation. (F.F. No. 20.) The WCJ
determined that Claimant did not submit an itemization and proof of submission of
the unpaid medical expenses to the correct carrier. As a result, the WCJ found that
the documents submitted by Claimant were insufficient to support a violation of the
terms of the Act. (F.F. No. 23.)
11
On August 8, 2019, Claimant appealed the WCJ’s decision to the
WCAB. On October 29, 2019, Claimant submitted a supplemental brief advising that
new CDC guidelines issued on October 10, 2019, were directly relevant to the issues
involved, identifying the dangers posed to all patients “forced” to abruptly stop taking
opioids, and requesting that the matter be remanded to the WCJ to consider the
current guidelines.3 On March 8, 2021, the WCAB circulated an opinion affirming
the WCJ’s decision in its entirety. R.R. at 355a-76a. Regarding Claimant’s
contention that the WCJ’s decision should be vacated and remanded for consideration
of the revised CDC guidelines, the WCAB disagreed, explaining that
the risks of abrupt discontinuation of opioid medications
were taken into account by both Dr. Ingram and Dr.
Hampton. Dr. Davis also acknowledged that Claimant's
treatment regimen was not in conformance with present-day
standards, and Claimant testified that his regimen had been
adjusted with a goal of decreasing his medication use. We
do not agree that a remand is necessary for consideration of
the detrimental effects of an abrupt withdrawal of opioid
medications.
Id. at 374a-75a.
3
Our review is limited to the certified record. Neither the petition for rehearing nor the
WCAB order denying the same appear in the certified record but they are provided in Claimant’s
reproduced record. Absent any objection from Employer, we will address the same herein.
12
On March 23, 2021, Claimant filed a request for rehearing. Id. at 377a-
80a. That request was denied by the WCAB on March 30, 2021. Id. at 398a. Before
this Court,4 Claimant raises the following seven issues:5
1. Whether the WCAB failed to address all issues raised
by Claimant?
2. Whether the UR determinations were invalid because
the insurer failed to list “other medical providers” on
the UR Requests?
3. Whether Dr. Reinhardt’s UR determination was
invalid for the reason that she was not board certified
in pain management?
4. Whether the UR reviews performed by Dr. Reinhardt
and Dr. Hampton were unequivocal and definitive?
5. Whether the decision of the WCJ was a “reasoned
decision”?
6. Whether the WCAB abused its discretion in denying
Claimant’s request for a rehearing?
7. Whether Claimant’s constitutional due process rights
were violated in the litigation before the WCJ?
4
This Court reviews the WCJ’s adjudication to determine whether the necessary findings of
fact are supported by substantial evidence, whether WCAB procedures were violated, whether
constitutional rights were violated, or whether an error of law was committed. MV Transportation
v. Workers’ Compensation Appeal Board (Harrington), 990 A.2d 118, 120 n.3 (Pa. Cmwlth. 2010).
5
Claimant actually raises nine issues in his Issues Presented section of his brief. See
Claimant’s Br. at 4. For clarity, we have rephrased and combined our discussion of some of
Claimant’s issues.
13
1.
In his first issue, Claimant argues that the WCAB failed to address all
issues he raised in his appeal from the WCJ’s decision. We have reviewed the record
and the decision of the WCAB and are satisfied, as explained below, that the WCAB
addressed all of the issues raised by Claimant in his appeal to the WCAB.
2.
Next, Claimant contends that the UR requests were defective because
they did not list all of his other treatment providers.6 (R.R. at 97a, 12a.) Because of
this alleged defect, Claimant argues that the reviewers, Dr. Reinhardt and Dr.
Hampton, were not provided with the opportunity to review all his medical records
and this rendered their UR determinations void ab initio.
In Seamon v. Workers’ Compensation Appeal Board (Sarno & Son
Formals), 761 A.2d 1258 (Pa. Cmwlth. 2000) (en banc), the claimant argued the
failure to obtain medical records from his earlier treating doctors rendered the UR
determinations inadmissible or, at least, incompetent to support the finding that the
treatment was not reasonable or necessary. Id. at 1261. This Court disagreed and
determined that the URO’s failure to obtain all records did not invalidate the review.
We concluded that a lack of the complete documentary medical history does not
automatically preclude a UR reviewer from deciding the reasonableness or necessity
of a particular treatment, nor does it preclude a WCJ from crediting and relying on
the UR determination.7
6
Before the WCAB, Claimant argued that UR was waived because the UR requests were
not properly completed. The WCAB addressed this argument on pages 4-6 of its opinion.
7
See also Solomon v. Workers’ Compensation Appeal Board (City of Philadelphia), 821
A.2d 215 (Pa. Cmwlth. 2003), where this Court, relying on Seamon, observed that, in the absence of
a statement by a reviewer that she was unable to render an opinion because medical records were
(Footnote continued on next page…)
14
Claimant acknowledges that pursuant to Seamon, failure of a reviewer to
obtain the entire medical file does not automatically preclude a reviewer from
assessing the reasonableness or necessity of a particular treatment. He contends,
however, that his argument is different than the one we considered in Seamon. He
argues that when, as here, the reviewer’s “inability to even seek the records” is due to
the insurer/employer’s failure to identify and list them on the UR request form, then
the UR determination is defective and should be invalidated. (Claimant’s Br. at 18.)
Stated differently, he contends that listing “other treatment provider(s)” on the UR
request form is mandatory8 and suggests that the failure to do so should automatically
render a UR determination defective. There are several problems with Claimant’s
argument.
First, we decline to assume, as Claimant does, that the failure to list a
claimant’s “other treatment provider(s)” on the UR request form will necessarily
make it impossible for the reviewer to obtain and review other providers’ records.
That simply is not the case as demonstrated by this record. Both Drs. Reinhardt and
Hampton reviewed copious records from Claimant’s other treatment providers, and
(continued…)
missing, there was no need for her to review all records of everyone who provided medical
treatment to the claimant in order to opine solely concerning the reasonableness and necessity of the
treatment at issue.
8
In support, Claimant points to the medical cost containment regulations at 34 Pa. Code
§127.407(a), which provides that “[i]n order to determine the reasonableness or necessity of the
treatment under review, UROs shall obtain for review all available records of all treatment rendered
by all providers to the employee for the work related injury,” and 34 Pa. Code §127.462, which
provides that “UROs shall attempt to obtain records from all providers for the entire course of
treatment rendered to the employee for the work related injury which is the subject of the UR
request, regardless of the period of treatment under review.”
15
they were able to conduct their reviews of the challenged treatment in the context of
Claimant’s entire course of care for his work-related injury. As noted, both Drs.
Reinhardt and Hampton demonstrated their knowledge of Claimant’s current
condition and recounted his lengthy medical history and treatments, from the date of
his accident nearly 20 years ago, to the present. That history was based on their
review of other treatment providers’ medical records that were, not surprisingly,
amongst Dr. Sing’s and Dr. Davis’s records.
We also fail to discern how the question posed by Claimant (failure to
list other treatment providers on UR request form) is fundamentally different than the
one we considered in Seamon. The Court in Seamon held that a UR determination
that did not include a review of the medical treatment by other providers did not
automatically render the reviewers’ opinions invalid. Here, even if the reviewers did
not conduct a review of the medical records of other providers due to the insurer’s
failure to identify them on the UR request form, it would not automatically mean the
reviewers would be unable to render a determination of reasonableness or necessity
under Seamon. Focusing on the fact that the other providers were not listed on the
UR request form seems to us to be beside the point. In any event, as discussed, the
reviewers did review medical records from Claimant’s other treatment providers,
including his records from his psychologist and surgeon.9 Claimant does not identify
any other provider’s records that were not reviewed that would have in any way
changed the determination of the reviewers.
9
Claimant argues that his surgeon and psychologist were not identified on the UR request
form. However, as noted, both reviewers did review his surgeon’s records and records of his
psychologist.
16
Finally, the absence of other providers’ medical records, if any, goes to
the WCJ’s weighing of the evidence, which is beyond our scope of review. See
Solomon (the breadth of information reviewed by the UR reviewer is a factor which
the WCJ may consider, but it is no more conclusive than any other single factor
considered in evaluating the credibility of conflicting expert opinions).
In Patton v. Workers’ Compensation Appeal Board (Delaware River
Port Authority), (Pa. Cmwlth., No. 1095 C.D. 2017, filed February 9, 2018O, 2018
WL 792104,10 the claimant argued, as Claimant does here, that the reviewer’s UR
determination was defective because the UR request failed to list all of the claimant’s
other treatment providers. This Court rejected the argument, explaining that
the regulatory scheme developed under the Act
contemplates assessment of reasonableness and necessity of
a specific provider’s treatment in the context of the overall
course of care provided to the claimant. However, we
expressly found an incomplete documentary medical
history “does not automatically preclude a UR doctor from
making a determination of reasonableness or necessity;
nor does it preclude a WCJ from crediting and relying on
the UR report.” [Seamon, 761 A.2d at 1262].
Moreover, this Court pointed out in Seamon that in
weighing the evidence and determining credibility, the WCJ
can consider any irregularities in the review process. Once
the employer satisfies its burden of proof by relying on a
UR determination, the claimant then has the burden to rebut
that evidence, which he may do by submitting other medical
evidence. Id.Patton, slip op. at *8, 2018 WL 792104 at *4 (emphasis added).
10
Pursuant to section 414(a) of this Court’s Internal Operating Procedures, we may cite an
unreported opinion of this Court for its persuasive value. 210 Pa. Code §69.414(a).
17
Here, neither Dr. Reinhardt nor Dr. Hampton indicated that they were
unable to render an opinion due to the absence of information regarding any other
providers. They never indicated that they were unable to assess Claimant’s current
medical condition and complaints, which were essential to their determination if the
Oxycontin dosages prescribed were necessary or reasonable. As such, the failure to
indicate other treatment providers on the UR request forms was neither fatal to the
reviewers’ UR determinations, nor did it preclude Dr. Reinhardt or Dr. Hampton
from determining the reasonableness or necessity of the treatments under review.
Citing Seamon, the WCAB accurately confirmed that the failure to list additional
providers on the UR request forms did not preclude UR or preclude the WCJ from
crediting and relying upon the reports. We determine no error.
3.
In his third issue, Claimant argues that Dr. Reinhardt’s review was
invalid because she was not licensed in the same profession and with the same or
similar specialty as the provider under review, as required by section 306(f.1)(6)(i) of
the Act, 77 P.S. §531(6)(i). Claimant’s argument is unavailing.
The Act requires that the reviewer be licensed by the Commonwealth in
the same profession and with the same or similar specialty as the provider under
review. Section 306(f.1)(6)(i) of the Act, 77 P.S. §531(6)(i). The implementing
regulation, 34 Pa. Code §127.466, requires the URO to forward the records, the
request for UR, the notice of assignment and a Bureau-prescribed instruction sheet to
a reviewer licensed by the Commonwealth in the same profession and having the
same specialty as the provider under review. 34 Pa. Code §127.467. As the WCAB
observed, neither the Act nor the regulations address licensing at a subspecialty level.
18
Both Dr. Davis and Dr. Reinhardt were board certified in family
practice. (R.R. at 363a.) Thus, both the reviewer and the reviewee were certified in
the same specialty, family medicine. The appointment of Dr. Reinhardt, therefore,
did conform to the requirements of the Act and implementing regulations.
To the extent that Dr. Reinhardt is alleged to have lacked adequate
qualifications to review the treatment of Dr. Davis, this was an issue of credibility to
be determined by the WCJ. Daniels v. Workers’ Compensation Appeal Board
(Tristate Transport), 828 A.2d 1043 (Pa. 2003); Sherrod v. Workmen’s Compensation
Appeal Board (Thoroughgood, Inc.), 666 A.2d 383 (Pa. Cmwlth. 1995). Credibility
determinations will not be disturbed unless their basis is arbitrary and capricious, or
so fundamentally dependent on a misapprehension of materials facts, or so otherwise
flawed, as to render the basis irrational. Casne v. Workers’ Compensation Appeal
Board (STAT Couriers, Inc.), 962 A.2d 14 (Pa. Cmwlth. 2008). That standard was
not met here. Claimant has not established that the WCJ made arbitrary, capricious,
or otherwise flawed findings regarding the qualifications of Dr. Reinhardt.
4.
Next, Clamant contends that the reviewers, Dr. Reinhardt and Dr.
Hampton, offered improper advisory opinions, and not definitive determinations
because they were unable to state with certainty what dosage of opioids would be
proper, how to achieve a lower dosage, or what course of treatment would be
appropriate if continuing efforts to reduce the dosage remain unsuccessful. Claimant
argues that they only spoke in terms of what Claimant’s treating providers “should
try” to do. (Claimant’s Br. at 23.) Again, we must disagree.
The single issue in a UR petition is the reasonableness and necessity of
the treatment under review. Warminster Fiberglass v. Workers’ Compensation
19
Appeal Board (Jorge), 708 A.2d 517 (Pa. Cmwlth. 1998). The employer has the
never-shifting burden throughout the UR process of proving that the challenged
medical treatment is not reasonable or necessary, no matter which party prevailed at
the UR level. Topps Chewing Gum v. Workers’ Compensation Appeal Board
(Wickizer), 710 A.2d 1256 (Pa. Cmwlth. 1998).
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. Trafalgar House v. Workers’ Compensation Appeal Board
(Green), 784 A.2d 232 (Pa. Cmwlth. 2001). Accordingly, the WCJ should consider
evidence of the palliative effect of treatments under review and weigh that evidence
in deciding a UR petition. Ryndycz v. Workers’ Compensation Appeal Board (White
Engineering), 936 A.2d 146 (Pa. Cmwlth. 2007). A reviewer may consider any risk
to the patient in determining the reasonableness and necessity of a prescribed
medication, Sweigart v. Workers’ Compensation Appeal Board (Burnham Corp.),
920 A.2d 962 (Pa. Cmwlth. 2007), and a WCJ may rely on the detrimental effects of
a medication that may be palliative in finding the use of the medication not
reasonable and necessary. Bedford Somerset MH/MR v. Workers’ Compensation
Appeal Board (Turner), 51 A.3d 267 (Pa. Cmwlth. 2012). A lack of progress in pain
improvement is also a factor for the WCJ’s consideration. Womack v. Workers’
Compensation Appeal Board (School District of Philadelphia), 83 A.3d 1139 (Pa.
Cmwlth. 2014).
Here, both reviewers unequivocally provided definitive determinations
that the Oxycontin being prescribed was unreasonable and unnecessary. Dr.
Reinhardt testified that Claimant’s total combined narcotic dose was 330 MME and
that the CDC guidelines’ upper limit is 120 MME. Dr. Hampton agreed that the
20
combined total dosage of Oxycontin prescribed by Dr. Sing exceeded typical
standards of practice and recognized medication and CDC guidelines, and was,
therefore, not reasonable and necessary.
To the extent that Claimant argues that it was the reviewers’ function to
devise a treatment plan for him, we cannot agree. Their opinions appropriately
considered the palliative nature of the treatment, the risks to Claimant of continuing
at very high doses of opioid medication, and the risks to Claimant of an abrupt
cessation of the medication. We determine no error.
5.
Next, Claimant argues that the WCJ’s decision was not a “reasoned”
decision. He argues that the WCJ relied on incompetent conclusions that were
contrary to the evidence as a whole, and he capriciously disregarded the identical
explanations offered by six experts. Further, he contends that the WCJ provided no
actual reason for the evidence found credible. We disagree.
Section 422(a) of the Act, 77 P.S. §834, provides that a WCJ must
render a reasoned decision containing findings of fact and conclusions of law based
upon the evidence as a whole, and must clearly and concisely explain the rationale for
the decision so that parties to a workers’ compensation action can understand the
reasoning underlying a particular result. Daniels. The WCJ must articulate an actual
objective reason for his credibility determinations of witnesses other than those
testifying in person at the hearing. Id. An appellate tribunal may not imagine the
reasons for a WCJ’s credibility determinations. Id.
An adequate explanation for a determination is provided when the WCJ
outlines the evidence considered, states credible evidence relied upon, and establishes
the reasons underlying the ultimate decision rendered. Id.
21
Further, as the ultimate finder of fact and the sole authority for
determining the weight and credibility of evidence, the WCJ may accept or reject the
testimony of any witness in whole or in part, including medical witnesses. Lombardo
v. Workers’ Compensation Appeal Board (Topps Co., Inc.), 698 A.2d 1378 (Pa.
Cmwlth. 1997). The WCJ’s findings will not be disturbed if they are supported by
substantial, competent evidence. Greenwich Collieries v. Workmen’s Compensation
Appeal Board (Buck), 664 A.2d 703 (Pa. Cmwlth. 1995).
Here, the WCJ clearly outlined the evidence considered and the
credibility determinations made, as well as the reasons underlying his ultimate
determination that Claimant’s treatment under review was not reasonable and
necessary, as required for rendering a reasoned decision. Daniels. Under these
circumstances, his decision provided a meaningful basis for appellate review.
6.
In his sixth issue, Claimant submits that the WCAB erred by denying his
petition for rehearing based on after-discovered evidence, i.e., the updated CDC
guidelines. He argues that Dr. Reinhardt and Dr. Hampton based their opinions on
then-current CDC guidelines, which were changed while Claimant’s appeal to the
WCAB was pending. Claimant contends that he brought the new guidelines to the
WCAB’s attention by supplemental brief and petition for rehearing, but they were
erroneously denied.
The grant or denial of a rehearing is generally within the discretion of
the WCAB and the WCAB will be reversed only for an abuse of discretion. Cudo v.
Hallstead Foundry, Inc., 539 A.2d 792 (Pa. 1989); City of Philadelphia v. Workers’
Compensation Appeal Board (Harvey), 994 A.2d 1 (Pa. Cmwlth. 2010); Payne v.
Workers’ Compensation Appeal Board (Elwyn, Inc.), 928 A.2d 377 (Pa. Cmwlth.
22
2007). A rehearing is not allowable (1) for the purpose of strengthening weak proofs
that have already been presented, (2) to permit a party to introduce previously
available evidence to attempt to cure a failure to satisfy a party’s burden of proof, or
(3) for the purpose of hearing additional testimony that is merely cumulative.
Washington v. Workers’ Compensation Appeal Board (National Freight Industries,
Inc.), 111 A.3d 214 (Pa. Cmwlth. 2015); Paxos v. Workmen’s Compensation Appeal
Board (Frankford-Quaker Grocery), 631 A.2d 826 (Pa. Cmwlth. 1993).
The WCAB directly addressed the arguments in Claimant’s
supplemental brief and, specifically, the reference to the new CDC guidelines in its
opinion. As the WCAB noted, the adverse effects of the abrupt discontinuation of
opioid medications were considered by both Dr. Ingram and Dr. Hampton, and no
witness had recommended the abrupt discontinuation of Claimant’s Oxycontin. To
the contrary, Dr. Hampton specifically found that a six-month weaning period was
reasonable and necessary. Dr. Ingram observed that it could take a year to effectuate
a 33% reduction in Claimant’s opioid dosage. Thus, we do not agree that a remand
was necessary for consideration of the detrimental effects of an abrupt withdrawal of
opioid medications. The WCAB did not abuse its discretion in denying Claimant’s
request for a rehearing.
7.
In his final issue, Claimant argues that his constitutional right to due
process was violated. He claims the WCJ erroneously admitted the claim adjuster’s
affidavit over his hearsay objection and capriciously disregarded undisputed
competent evidence that he properly submitted medical bills for treatment and that
that they remain unpaid.
23
Penalties are provided in section 435 of the Act,11 and are appropriate
where a violation of the Act or the WCAB’s rules and regulations occurs. The
assessment of penalties and the amount of penalties imposed, if any, are matters
within the WCJ’s discretion. Gumm v. Workers’ Compensation Appeal Board
(Steel), 942 A.2d 222 (Pa. Cmwlth. 2008). “[A] violation of the Act or its regulations
must appear in the record for a penalty to be appropriate.” Shuster v. Workers’
Compensation Appeal Board (Pennsylvania Human Relations Commission), 745
A.2d 1282, 1288 (Pa. Cmwlth. 2000). Further, a claimant who files a penalty petition
bears the burden of proving a violation of the Act occurred. Id. If the claimant
meets his initial burden of proving a violation, the burden then shifts to the employer
to prove it did not violate the Act. Id.The regulations require medical providers to submit medical bills for
payment on HCFA 1500, UB92, or any successor forms. 34 Pa. Code §127.201.
Monthly medical reports are required to be submitted in any month during which
treatment was provided to a claimant, and the insurer is not obligated to pay for the
treatment covered by the report until it receives the report. 34 Pa. Code §127.203.
Under section 306(f.1)(5) of the Act, 77 P.S. §531(5), medical bills must be paid
within 30 days of receipt unless the employer disputes the causal connection or the
reasonableness and necessity of the treatment. An employer may deny payment of
medical expenses if the medical bills are not submitted on one of the forms specified
in section 127.201 of the regulations, 34 Pa. Code §127.201, relating to bills and
forms. Insurers are not responsible to pay for treatment until such form is submitted
as specified. Further, if a medical provider does not submit the required medical
report on the prescribed form, the insurer is not obligated to pay for the treatment
11
Added by the Act of February 8, 1972, P.L. 25, 77 P.S. §991.
24
until the required report is received. 34 Pa. Code §127.203(d). If LIBC forms are not
timely submitted to the employer or its insurer, the employer should not be held liable
for payment until the LIBC forms are submitted. Section 306(f.1)(2) of the Act 77
P.S. §531(2); 34 Pa. Code §127.203.
Here, the WCJ concluded that Claimant failed to establish a violation on
the record. We discern no error. Claimant had the burden of establishing a violation.
Shuster. The WCJ found Dr. Davis’s testimony was insufficient to establish that the
specific bills in question were properly submitted with the accompanying HCFA
forms and medical reports, to the correct carrier. Finally, contrary to Claimant’s
contention that the WCJ improperly made a finding of fact based on hearsay, the
WCJ did not rely on Ms. Myers’ affidavit in concluding that Claimant failed to
establish that properly submitted invoices for reasonable, necessary, and causally
connectedi medical treatment, were not paid.
Accordingly, we conclude that Claimant’s constitutional right to due
process was not violated in the litigation before the WCJ.
Conclusion
Based on the foregoing, the March 8, 2021 and March 30, 2021 orders of
the WCAB are affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
25
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Frank Hughes, :
Petitioner :
: No. 333 C.D. 2021
v. :
:
Wawa, Inc. (Workers’ Compensation :
Appeal Board), :
Respondent :
ORDER
AND NOW, this 13th day of December, 2021, the March 8, 2021 and
March 30, 2021 orders of the Workers’ Compensation Appeal Board are hereby
AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge