D. Williams v. City of Philadelphia (WCAB) ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Denise Williams, :
Petitioner :
:
v. : No. 314 C.D. 2021
: Submitted: August 13, 2021
City of Philadelphia (Workers’ :
Compensation Appeal Board), :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE BROBSON FILED: December 22, 2021
Denise Williams (Claimant) petitions for review of an order of the Workers’
Compensation Appeal Board (Board), dated March 4, 2021. The Board affirmed a
decision of a Workers’ Compensation Judge (WCJ), denying Claimant’s petition for
review of utilization review determination (Petition). For the reasons that follow,
we affirm.
I. BACKGROUND
Claimant worked as a police officer for the City of Philadelphia (Employer).
On September 25, 1998, Claimant was involved in a work-related motor vehicle
accident, which resulted in injuries to her head, neck, shoulder, both hands, and back.
In 2018, Claimant began treating with Corey J. Grink, D.C., a licensed chiropractor,
for her work-related injuries. Thereafter, on or around May 17, 2019, Employer
filed a request for utilization review (UR) pursuant to Section 306(f.1)(6)(i) of the
Workers’ Compensation Act (Act)1 to assess the reasonableness or necessity of any
and all treatment provided to Claimant by Dr. Grink from March 28, 2019, and
ongoing thereafter. (Reproduced Record (R.R.) at 20a-22a.) The UR was assigned
to Uniontown Medical Rehabilitation, P.C., a utilization review organization (URO),
which delegated the review to Heather Ferlitch, D.C. (Reviewer), a licensed
chiropractor. (Id. at 20a-29a.) On July 8, 2019, the URO submitted a utilization
review determination (Determination), dated June 24, 2019, concluding that the
treatment provided by Dr. Grink from March 28, 2019, and ongoing through
November 30, 2019, was unreasonable and unnecessary. (Id. at 1a, 27a-29a.)
Thereafter, on July 12, 2019, Claimant filed her Petition. (Id. at 1a.)
The WCJ held a hearing on October 25, 2019, at which Claimant appeared
and testified in support of her Petition. (Id. at 30a-32a.) Claimant testified that as
of March 28, 2019, she was treating with Dr. Grink twice a week for up to two hours
and that during those visits she received a number of treatments, including electrical
stimulation, chiropractic manipulation, manual therapy, mechanical traction,
exercise, and cold laser therapy, all of which relaxed her muscles and benefited her
movement. (Id. at 35a-37a.) Claimant noted that she had surgery on her neck
following the work-related injury and that she continues to suffer from pain in her
neck and back that radiates to her right shoulder and causes her to experience
headaches. (Id. at 37a, 41a.) Dr. Grink’s treatment, therefore, focused on her neck
and back, would change depending on the severity of her pain, and generally gave
her pain relief until the time she would return to Dr. Grink. (Id. at 36a-37a, 39a-40a.)
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 531(6)(i).
2
Claimant explained that when she misses a treatment, she does not get the same
range of motion in lifting her shoulders and turning her neck and that the decreased
range of motion prevents her from completing her everyday activities.
(Id. at 37a-38a.) She testified that she would like to continue her treatment with
Dr. Grink because it helps her to carry on those daily activities. (Id. at 38a.) While
Claimant did not believe that the pain would ever go away, she stated that she does
not experience increased pain as a result of the treatment. (Id. at 39a.)
In further support of her Petition, Claimant submitted a report authored by Dr.
Grink concerning the treatment he provided to Claimant. (Id. at 51a-52a.) Dr. Grink
first noted in his report that Claimant underwent a cervical fusion in 2000, as well
as arthroscopic surgical procedures for her knee and shoulder that same year.
(Id. at 51a.) He explained that the most recent magnetic resonance imaging (MRI)
of Claimant’s lumbar spine performed on October 22, 2018, “indicated disc bulging
at L5-S1 along with multilevel disc degeneration and multiple disc protrusions at
L2-L3, L3-L4, and L4-L5.” (Id.) A cervical MRI performed on that same date
further “indicated severe loss of disc height, along with degenerative changes at
C5-C6 and C6-C7 along with multiple disc bulges at C5-C6, C6-C7, and C7-T1.”
(Id.) Dr. Grink observed that Claimant began treating with him on
September 25, 2018, at which time Claimant complained of pain and dysfunction
related to her neck and lower back, along with pain and muscle tightness into her
shoulders, right buttock, and hip, all of which severely impacted Claimant’s daily
functions. (Id.) Dr. Grink opined that the treatment he provided, which included
cold laser therapy, chiropractic manipulation, therapeutic massage therapy, and
continued home exercises and stretching, had a significant impact upon Claimant’s
ability to function on a daily basis. (Id. at 51a-52a.) Dr. Grink explained that, while
3
Claimant did have some acute exacerbations and increases in pain, the overall
reduction in her pain allowed her to reduce her intake of opiate medications and
better complete her daily activities. (Id. at 52a.)
As it concerns the Determination, Dr. Grink indicated that “sub[]standard
documentation” caused the Reviewer to conclude that his treatment was ineffective,
and he admitted that he could have provided better documentation. (Id.) Dr. Grink
opined, however, that the lack of documentation should not prevent Claimant from
receiving treatment that “allowed subtle improvements to [her] strength, along with
being able to perform everyday activities, and [increased] blood flow to [a]ffected
areas, which ultimately provided for an[] optimal outcome.”2 (Id.)
In opposition to Claimant’s Petition, Employer offered the Determination.
(R.R. at 33a.) In the Determination, Reviewer indicated that Claimant’s diagnoses
consisted of “cervical radiculitis status post cervical fusion at C3-C4 and C4-C5,
cervical disc protrusion with radiculopathy at C5-C6, lumbar radiculitis, right hip
pain, and muscle spasm.” (Id. at 23a.) Reviewer indicated that Claimant’s medical
records revealed that Claimant underwent a cervical fusion and arthroscopic knee
and shoulder procedures as a result of the work-related injury.3 (Id.) Reviewer noted
2
Claimant also submitted a personal statement in support of her Petition. (R.R. at 54a.)
Much like her testimony, Claimant explained in the statement that she treats with Dr. Grink twice
per week for up to two hours; that the treatment includes massage therapy, adjustment, ultrasound,
low level laser treatment, and traction; and that Dr. Grink prescribes therapeutic pillows, stretch
bands, a mat, and light weights for a home exercise program. (Id.) Claimant submitted that, while
the treatment does not take away her pain and stiffness completely, it allows her to do more of her
daily activities and it keeps her from stiffening up. (Id.) She stated that she can tell the difference
in her physical abilities when she misses treatments, including having increased pain and other
symptoms. (Id.) Claimant indicated that she would, therefore, like to continue the treatment with
Dr. Grink. (Id.)
3
In the process of developing the Determination, Reviewer examined a number of
documents provided by Dr. Grink, including, but not limited to: an initial evaluation from
4
that Claimant began treating with Dr. Grink on September 25, 2018, for pain and
stiffness in her neck, shoulders, lower back, right buttock, and hip. (Id.) Claimant
treated with Dr. Grink 46 times between September 25, 2018, and March 26, 2019,
and an additional 12 times between April 2, 2019, and May 31, 2019, the latter of
which time periods was under review. (Id.) Claimant treated with Dr. Grink at least
2 or 3 times per week through January 11, 2019, and approximately 2 times per week
since that time. (Id.) Treatments consisted of cold laser therapy, therapeutic
massages, spinal decompression therapy, chiropractic manipulation, and electric
stimulation. (Id.) Reviewer stated that 12 weeks of care, or 60 treatment sessions,
is considered standard for acute and subacute neck and back pain, and that 36 visits
in 12 weeks is recommended for chiropractic manipulation. (Id. at 26a.) Reviewer
noted that any complicating factors would require a modification of the frequency
and duration of care. (Id.) Reviewer reported, however:
[A]ccording to the notes provided, [in] only 7 of the [initial] 48 [sic]
visits [did] the patient note[] any improvement from treatment. During
the time period under review, in only 3 out of the 12 visits was there
documented improvement to the subjective complaint. At most visits
the subjective note stated that “no change to the pain/stayed the same”
or “an increase in pain.” During the time period under review, 9 out
of 12 visits were “worse pain” or “pain ha[s] stayed more or less the
same.” When the notes stated that there was an improvement, the
subjective aspect of the note only listed “pain has improved.”. . . In
addition, in only 10 out of 50 total visits did [Claimant] note a positive
change as a result of treatment.
September 25, 2018; office notes from 58 separate visits between September 27, 2018, and
May 31, 2019; an MRI scan of Claimant’s lumbar spine dated October 20, 2018; an MRI scan of
Claimant’s brain dated June 23, 2009; an MRI scan of the cervical spine report for 6 dates of
service between April 13, 2009, and October 19, 2018; patient diagnostic study reports from 8 of
the MRI scans; notes from 5 visits with other chiropractors between November 8, 2018, and
March 29, 2019; records from an emergency department visit at Einstein Medical Center dated
April 11, 2019; and an employee statement submitted by Claimant. (R.R. at 22a-24a.)
5
(R.R. at 26a-27a.) While observing that Claimant’s pain was complex, Reviewer
opined that there was not enough subjective information regarding her pain, such as
the use of a Visual Analog Scale, to conclude there was an objective improvement
as a result of the treatment. (Id.) Any improvement Claimant experienced,
moreover, was sporadic and random as opposed to successive. (Id. at 27a.)
Reviewer observed that Dr. Grink did not submit a written review of the treatment
and that other reevaluations and assessments were not provided—i.e., she indicated
that the documentation provided by Dr. Grink was substandard. (Id. at 24a, 27a.)
Thus, despite the fact that Claimant’s personal statement indicated that the treatment
allows her to do “more of her daily activities and keeps her from ‘stiffening up,’”
the available medical information strongly suggested that Claimant had “an
extremely limited response to [treatment].” (Id. at 24a, 54a.) Reviewer, therefore,
concluded that the treatment from March 28, 2019, through November 30, 2019, was
unreasonable and unnecessary. (Id. at 27a.)
Employer also offered a report prepared by David Glaser, M.D., a
board-certified orthopedic surgeon, detailing an independent medical examination
(IME) he conducted of Claimant in 2019.4 (Id. at 12a, 33a.) In the report, Dr. Glaser
explained that he obtained a history, reviewed Claimant’s medical records, and
examined Claimant physically in order to make his assessment concerning the
reasonableness and necessity of the chiropractic treatment provided to Claimant by
Dr. Grink.5 (Id. at 12a-17a.) Based upon his IME, Dr. Glaser opined within a
4
Dr. Glaser had previously performed an IME of Claimant on February 12, 2016, in
connection with a termination petition filed by Employer.
5
In his report, Dr. Glaser listed the records he reviewed, as follows: his previous IME
report and records dated February 12, 2016; a workers’ compensation medical report from Harburg
Medical Sales; the Notice of Compensation Payable issued on October 12, 1998; surgical records
6
reasonable degree of medical certainty that Claimant did not require any further
treatment and that the chiropractic therapy should be discontinued. (Id. at 17a.) Dr.
Glaser stated that Claimant’s primary complaint upon examination was her spine,
but that her complaints lacked specificity. (Id.) He noted that Claimant’s medical
records failed to diagnose specific surgical targets or indicate a diagnosis that would
explain her symptoms. (Id.) While Claimant’s medical records indicated diffuse
numbness and weakness, Dr. Glaser explained that there was no correlation between
such symptoms and Claimant’s EMG studies and diagnostic testing. (Id.) Dr. Glaser
admitted that it was reasonable to expect that Claimant would have residual effects
from her cervical fusion, but this did not lead him to opine that Claimant required
further treatment. (Id.) Rather, a program of home stretching, in Dr. Glaser’s
opinion, was all that Claimant required going forward. (Id.) Dr. Glaser further
opined that, due to a lack of additional testing or records focusing on any issues with
Claimant’s shoulder, it supported his previous opinion that she has no residual
symptomology with her shoulder. (Id.) Dr. Glaser, thus, concluded that Claimant
for bilateral carpal tunnel release from 2010; records from Dr. Michael Yoon from before and after
Dr. Glaser’s assessment of Claimant in 2016; records from a neurosurgeon that examined Claimant
in 2016; records from Dr. Zarina Ali dated November 1, 2016; records from the Berger Henry
ENT specialty group; records from Dr. Andrew Freese; a report from Dr. Arnold Berman dated
January 6, 2015; records from Altura Centers for Health; reports from Dr. Curtis Slipman in the
Penn Spine Center; an MRI of Claimant’s cervical spine dated April 13, 2009; an MRI of
Claimant’s right shoulder dated April 14, 2009; an MRI of Claimant’s brain dated June 23, 2009;
an MRI of Claimant’s cervical spine (weight bearing study) dated July 11, 2009; an MRI of
Claimant’s cervical spine dated June 10, 2010; an MRI of Claimant’s left shoulder dated
June 10, 2010; an MRI of Claimant’s right shoulder dated June 10, 2010; an electromyography
(EMG) dated September 7, 2010; an MRI of Claimant’s brain dated August 9, 2011; an MRI of
Claimant’s cervical spine dated August 9, 2011; an MRI of Claimant’s cervical spine dated
February 1, 2016; an MRI of Claimant’s cervical spine dated October 26, 2016; an MRI of
Claimant’s lumbar spine dated January 10, 2017; miscellaneous chiropractic records; and physical
therapy records. (R.R. at 15a-16a.)
7
required no further treatment, but he did recommend Claimant for light-duty
restrictions as a result of ongoing issues with her neck. (Id. at 17a-19a.)
On April 10, 2020, the WCJ issued a decision, denying Claimant’s Petition.
(R.R. at 55a, 61a.) In so doing, the WCJ summarized the relevant evidence and
made the following credibility determinations:
7. The undersigned has carefully and thoroughly reviewed the
testimony of Claimant and finds her testimony not credible regarding
the efficacy of the treatment rendered by Dr. Grink, as that testimony
and the report of Dr. Grink both lack any specificity as to exactly what
that treatment does for her and what activities are enabled by that
treatment.
8. The undersigned has carefully and thoroughly reviewed the opinions
of [Reviewer], Dr. Glaser, and Dr. Grink, and finds the opinions of
[Reviewer] and Dr. Glaser more competent and credible than those of
Dr. Grink. Dr. Glaser has had the opportunity to examine Claimant on
two occasions to support his opinions. [Reviewer’s] opinions are in
line with those of Dr. Glaser. While Dr. Grink states in his report that
his documentation could have been more detailed, his report provides
no such additional detail to establish that his treatment was reasonable
and necessary.
(Id. at 59a-60a.) Based on these credibility determinations, the WCJ concluded that
Employer met its burden of proving that the treatment provided to Claimant by Dr.
Grink as of March 28, 2019, and ongoing thereafter, was not reasonable or necessary.
(Id.) Claimant appealed to the Board, which affirmed the WCJ’s decision. Claimant
now petitions this Court for review.
II. DISCUSSION
On appeal,6 Claimant essentially contends that substantial evidence of record
does not exist to support the WCJ’s finding that the treatment provided by Dr. Grink
6
“Our review is limited to determining whether an error of law was committed, whether
necessary findings of fact are supported by substantial evidence[,] and whether constitutional
8
is unreasonable and unnecessary as of March 28, 2019, and ongoing thereafter.
More specifically, Claimant contends that Reviewer specifically limited her finding
as to the reasonableness and necessity of the treatment to the time period of
March 28, 2019, through November 30, 2019. Claimant also alleges that Dr.
Glaser’s opinion conflicts with Reviewer’s opinion because Dr. Glaser
recommended a total discontinuation of treatment, whereas, again, Reviewer
concluded that treatment should be suspended only through November 30, 2019.
Based on this conflict, Claimant contends that the record does not support the WCJ
extending Reviewer’s finding relative to the reasonableness and necessity of Dr.
Grink’s treatment beyond November 30, 2019. Lastly, Claimant contends that Dr.
Glaser’s opinion is unsubstantiated because Dr. Glaser did not review Dr. Grink’s
treatment notes up to or after March 28, 2019.7
Employer responds that the WCJ’s finding that the treatment provided to
Claimant by Dr. Grink is not reasonable or necessary from March 28, 2019, and
ongoing thereafter is supported by substantial evidence. While Employer concedes
that Dr. Glaser did not review Dr. Grink’s treatment notes, Employer observes that
Dr. Glaser reviewed a significant amount of other medical records and diagnostic
studies at the time of his 2016 and 2019 IMEs, which Employer argues is sufficient
to support his opinion. Employer further contends that, contrary to Claimant’s
rights were violated.” Combine v. Workers’ Comp. Appeal Bd. (Nat’l Fuel Gas Distrib.
Corp.), 954 A.2d 776, 778 n.1 (Pa. Cmwlth. 2008), appeal denied, 967 A.2d 961 (Pa. 2009).
7
To the extent that Claimant also argues that the WCJ erred by mischaracterizing the
description of Claimant’s work-related injuries, her argument has no merit. As the Board noted,
the WCJ did not amend the description of Claimant’s work-related injuries, but rather, simply
recited what the documents of record indicated. The nature of Claimant’s work-related injuries is
not at issue in this matter.
9
contentions, the opinions of Reviewer and Dr. Glaser were consistent with one
another and, thus, constitute substantial evidence to support the WCJ’s findings.
In workers’ compensation proceedings, the WCJ is the ultimate finder of fact.
Williams v. Workers’ Comp. Appeal Bd. (USX Corp.-Fairless Works), 862 A.2d
137, 143 (Pa. Cmwlth. 2004). As fact-finder, matters of credibility, conflicting
medical evidence, and evidentiary weight are within the WCJ’s exclusive province.
Id. If the WCJ’s findings are supported by substantial evidence, they are binding on
appeal. Agresta v. Workers’ Comp. Appeal Bd. (Borough of Mechanicsburg),
850 A.2d 890, 893 (Pa. Cmwlth. 2004). We may only reverse a WCJ’s findings if
they are unsupported by substantial evidence or are arbitrary or capricious. B & T
Trucking v. Workers’ Comp. Appeal Bd. (Paull), 815 A.2d 1167, 1170
(Pa. Cmwlth. 2003). In making this determination, we may not “reweigh the
evidence or the credibility of the witness[es], but [must] simply determine whether
the WCJ’s findings have the requisite measure of support in the record as a whole.”
Elk Mountain Ski Resort, Inc. v. Workers’ Comp. Appeal Bd. (Tietz,
deceased), 114 A.3d 27, 32 n.5 (Pa. Cmwlth. 2015). It is irrelevant whether there is
evidence in the record that could support a different conclusion; “rather, the pertinent
inquiry is whether there is any evidence which supports the WCJ’s factual
finding[s].” Hoffmaster v. Workers’ Comp. Appeal Bd. (Senco Prods., Inc.), 721
A.2d 1152, 1155 (Pa. Cmwlth. 1998).
The UR process in workers’ compensation proceedings is set forth in
Section 306(f.1)(6) of the Act, which provides, in pertinent part:
(6) [D]isputes as to reasonableness or necessity of treatment by
a health care provider shall be resolved in accordance with the
following provisions:
10
(i) The reasonableness or necessity of all treatment provided by
a health care provider under th[e A]ct[8] may be subject to prospective,
concurrent or retrospective [UR] at the request of an employe[e],
employer or insurer. The [Pennsylvania Department of Labor and
Industry (Department)] shall authorize [UROs] to perform [UR] under
th[e A]ct. [UR] 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. Organizations not authorized by the [D]epartment may
not engage in such [UR].
An employer has the burden throughout the UR process to prove that the treatment
provided to the claimant is not reasonable or necessary. Womack v. Workers’ Comp.
Appeal Bd. (Sch. Dist. of Phila.), 83 A.3d 1139, 1149 (Pa. Cmwlth.), appeal denied,
94 A.3d 1011 (Pa. 2014). The UR determination becomes part of the record before
the WCJ. 77 P.S. § 531(6)(iv). The WCJ shall consider the UR determination as
evidence, but the WCJ is not bound by its conclusions. Id.
After careful review, we find no merit to Claimant’s contention that the record
lacks evidence to support the WCJ’s finding that the treatment provided to Claimant
by Dr. Grink is unreasonable and unnecessary as of March 28, 2019, and ongoing
thereafter. While we recognize that Reviewer opined that Dr. Grink’s treatment of
Claimant was not reasonable or necessary only through November 30, 2019, Dr.
Glaser opined that Claimant did not require any further treatment for her
work-related injury, thus, supporting a finding that Dr. Grink’s treatment as of
March 28, 2019, and ongoing thereafter is not reasonable or necessary to treat
Claimant’s work-related injury. Indeed, the WCJ credited both Dr. Glaser’s and
Reviewer’s opinions that the treatment was unreasonable and unnecessary, and she
concluded, based on those opinions, that the treatment provided to Claimant by Dr.
Grink was unreasonable and unnecessary as of March 28, 2019, and ongoing
8
77 P.S. §§ 1-1041.4, 2501-2710.
11
thereafter. In accepting these opinions, the WCJ rejected both Claimant’s testimony
and Dr. Grink’s opinion, finding that neither individual was credible concerning the
nature of Claimant’s improvements because they could not adequately explain how
the treatment benefited her. As noted above, it is not this Court’s role to reweigh
evidence or second-guess credibility determinations. Elk Mountain, 114 A.3d
at 32 n.5. It is also irrelevant whether there is evidence in the record that could
support a different conclusion; rather, our concern is whether there is substantial
evidence to support the findings that were made. Hoffmaster, 721 A.2d at 1155.
Clearly, the opinions of Reviewer and Dr. Glaser provide substantial support for the
WCJ’s finding that Claimant’s treatment was unreasonable and unnecessary as of
March 28, 2019, and ongoing thereafter. See Agresta, 850 A.2d at 893.
We are also not persuaded by Claimant’s argument that Dr. Glaser’s opinion
is somehow unsubstantiated because he failed to review Dr. Grink’s treatment notes.
First, Dr. Glaser performed an IME of Claimant and thereafter concluded that
Claimant did not require any further treatment for her work-related injury. In
reaching that conclusion, it may not have been necessary for Dr. Glaser to review
such notes. Second, Reviewer found that the limited treatment notes from Dr. Grink
indicated that Claimant had “an extremely limited response to [treatment],”
suggesting that the notes, nevertheless, would not have swayed Dr. Glaser’s opinion
even if he had reviewed them. (R.R. at 27a.) Finally, Dr. Glaser was clearly still
able to render a competent medical opinion based on the significant amount of
information he reviewed and the fact that he physically examined Claimant on two
separate occasions. For all these reasons, we cannot conclude that the record lacks
substantial evidence to support the WCJ’s finding that Dr. Grink’s treatment of
12
Claimant was not reasonable or necessary as of March 28, 2019, and ongoing
thereafter.
III. CONCLUSION
For the reasons set forth above, the Board’s order is affirmed.
P. KEVIN BROBSON, President Judge
Judge Fizzano Cannon did not participate in the decision of this case.
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Denise Williams, :
Petitioner :
:
v. : No. 314 C.D. 2021
:
City of Philadelphia (Workers' :
Compensation Appeal Board), :
Respondent :
ORDER
AND NOW, this 22nd day of December, 2021, the order of the Workers’
Compensation Appeal Board dated March 4, 2021, is AFFIRMED.
P. KEVIN BROBSON, President Judge