J. Barnhart v. WCAB (Tremont Borough)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jack Barnhart, :
Petitioner :
:
v. : No. 66 C.D. 2017
: Submitted: July 7, 2017
Workers’ Compensation Appeal :
Board (Tremont Borough), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: August 16, 2017
Jack Barnhart (Claimant) petitions for review of a December 20, 2016 Order
of the Workers’ Compensation Appeal Board (Board) affirming a February 17,
2016 Decision and Order of the Workers’ Compensation Judge (WCJ) denying, in
part, Claimant’s Petition for Review of Utilization Review (UR) Determination.
The WCJ determined that Claimant’s use of Provigil to counteract the somnolent
effects of the opioid medications he takes was not reasonable and necessary. On
appeal, Claimant contends that substantial evidence does not support the WCJ’s
determination and that the WCJ capriciously disregarded his evidence. Because
the WCJ credited the testimony of the UR reviewer over that of Claimant’s treating
physician, which constitutes substantial evidence to support the WCJ’s finding,
and the WCJ did not capriciously disregard Claimant’s evidence, we affirm.
In October 1996, Claimant suffered a work-related injury to his back while
employed by Tremont Borough (Employer). In 1999, following several
operations, Claimant began seeing John B. Chawluk, M.D., a neurologist, for
failed back syndrome and radicular back pain associated with his work injury.
(R.R. at 7a, 56a.) In order to relieve Claimant’s back pain, Dr. Chawluk initially
prescribed OxyContin and Lidoderm. (Id. at 57a.) In addition, in order “to
counteract [the] sedative effects” of Claimant’s narcotic medications, Dr. Chawluk
prescribed him Provigil. (Id. at 7a, 57a.) As of September 2014, Claimant was
taking 20 milligrams of OxyContin every 12 hours, 10 milligrams of oxycodone at
night, five percent Lidoderm patches applied daily for twelve hours, and 600
milligrams of Provigil a day (400 milligrams in the morning and 200 milligrams in
the afternoon).1 (Id. at 7a-8a, 57a.)
In December 2014, Employer filed a UR request questioning whether the
prescriptions of oxycodone, Lidoderm, and Provigil were reasonable and necessary
for Claimant. (Id. at 1a, 6a.)
As relevant to this appeal, Jon Glass, M.D., a neurologist and the reviewer of
the UR, concluded that Provigil is not reasonable and necessary for Claimant
because it is being used to counteract the sedative effects of his narcotic
medications but “[t]here is no evidence [in] the medical literature that Provigil is
effective for this indication.” (Id. at 8a.) Rather, Provigil is used to treat
obstructive sleep apnea hypopnea syndrome, narcolepsy, or shift work sleep
1
OxyContin is an extended-release form of oxycodone. (R.R. at 60a.) Oxycodone, in
contrast, is released immediately into the bloodstream. (Id. at 68a.)
2
disorder. (Id.) For support that Provigil is used only to treat these conditions, Dr.
Glass cited to the website for Prescribers’ Digital Reference. (Id. at 9a.)
Claimant petitioned for review of the UR determination. A hearing ensued
before a WCJ on August 20, 2015, during which Claimant testified regarding the
dose of each medication he was taking. Claimant had been previously taking 60
milligrams of OxyContin, but it was reduced to 20 milligrams “on account of the
lawyers.” (Id. at 30a.) The higher dose makes the pain more bearable. Claimant
takes oxycodone for “break-through pain.”2 (Id.) He takes Provigil to stay awake
because the other medications make him sleepy. Dr. Chawluk had tried to switch
Claimant from Provigil to Nuvigil, a less expensive drug, but it made him sick to
his stomach and caused itching and hives. After trying two samples of Nuvigil, Dr.
Chawluk switched Claimant back to Provigil. Claimant denied that he has sleep
apnea, narcolepsy, or shift work sleep disorder. (Id. at 39a.)
In support of his petition, Claimant submitted the deposition testimony of
Dr. Chawluk. Dr. Chawluk testified that Claimant had been taking 60 milligrams
of OxyContin twice a day in 2013, but it was reduced to 20 milligrams twice a day
because Claimant told Dr. Chawluk that he was being pressured to reduce the cost
of his medications. Dr. Chawluk was willing to reduce the dose and keep Claimant
on that dose because “his pain was at an acceptable level.” (Id. at 59a.) At that
dose level, Claimant reported to Dr. Chawluk that he could feel the medication
wearing off, he developed more pain, and his ability to walk declined. While Dr.
Chawluk initially tried having Claimant only on OxyContin, because he was
having a lot of pain at night, Dr. Chawluk prescribed oxycodone to help Claimant
sleep.
2
Once the dose of Claimant’s OxyContin was reduced, Dr. Chawluk added oxycodone to
Claimant’s regimen.
3
Regarding the Provigil, Dr. Chawluk explained that it “is designed to treat
daytime somnolence.” (Id. at 60a.) Although “[i]t has specific indications by the
[Food and Drug Administration (FDA)], [it] is used fairly extensively in an off-
label fashion for daytime somnolence.” (Id.) Dr. Chawluk said that Provigil is
“really the most effective and safest alerting medication on the market.” (Id. at
61a.) Early in his treatment with Dr. Chawluk, Claimant reported that the
OxyContin was making him somnolent. Dr. Chawluk had him try samples of
Provigil, and Claimant reported being more awake and alert during the day,
making Dr. Chawluk comfortable in maintaining Claimant on Provigil. (Id.)
Initially, Dr. Chawluk prescribed 200 milligrams once a day, but he later increased
it to 600 milligrams a day. When Dr. Chawluk reduced the dose of Claimant’s
OxyContin, he also reduced the dose of Claimant’s Provigil. (Id.) Dr. Chawluk
was “hopeful” that the reduction in the opioid dose would result in an increase in
Claimant’s wakefulness. (Id. at 70a.) Claimant, however, reported that “he was
too somnolent during the day[,]” and the dose was returned to the prior level. (Id.
at 62a, 70a.) Dr. Chawluk denied that Provigil is contraindicated for treating
somnolence associated with prescription opioid use. (Id. at 62a.) He testified that
there is medical literature to support using Provigil for this purpose but, when
asked for the name of the literature, he said, “I can’t quote it by verse.” (Id.) Dr.
Chawluk confirmed Claimant’s testimony that he tried to substitute Provigil with
Nuvigil. Dr. Chawluk explained that Nuvigil has a longer duration of action,
potentially fewer side effects, and costs less. Claimant, however, experienced
nausea and a rash when he tried Nuvigil and had to switch back to Provigil.
The WCJ concluded that Provigil was not a reasonable and necessary
treatment for Claimant. (WCJ Decision, Conclusion of Law (COL) ¶ 3.) In doing
4
so, the WCJ found that Dr. Chawluk’s opinion on the reasonableness and necessity
of Claimant continuing to take Provigil lacked credibility, while the WCJ found
Dr. Glass’s opinion to the contrary credible. (Id., Findings of Fact (FOF) ¶¶ 12-
13.) The WCJ cited to Dr. Glass’s statement, buttressed by his citation to the
website for Prescribers’ Digital Reference, that Provigil is used to treat obstructive
sleep apnea hypopnea syndrome, narcolepsy, and shift work sleep disorder, and
that there is no evidence in the medical literature to support the use of Provigil to
counteract the sedative effect of opioids. (Id. ¶ 14.) Based upon those factual
findings, the WCJ concluded that Provigil was neither a reasonable nor a necessary
treatment for Claimant. (COL ¶ 3.)
Claimant appealed the WCJ’s decision regarding the reasonableness and
necessity of his taking Provigil to the Board. The Board affirmed. The Board
concluded that there was substantial, competent evidence to support the WCJ’s
determination, namely, the opinion of Dr. Glass. (Board Op. at 4.) It was the
WCJ’s prerogative, the Board noted, to weigh the evidence and determine
credibility, and the WCJ had found that Dr. Glass’s opinion was credible, while Dr.
Chawluk’s opinion was not credible. Since there was substantial evidence to
support the WCJ’s finding, the Board had no authority to overturn it. The WCJ’s
credibility decision was reasonable. (Id. at 5.) Claimant subsequently filed the
instant Petition for Review with this Court.3
On appeal to this Court, Claimant contends that the WCJ’s determination is
not supported by substantial evidence. This is so, Claimant briefly asserts, because
3
“Our scope of review in a workers’ compensation appeal is limited to determining
whether necessary findings of fact are supported by substantial evidence, whether an error of law
was committed, or whether constitutional rights were violated.” Elberson v. Workers’ Comp.
Appeal Bd. (Elwyn, Inc.), 936 A.2d 1195, 1198 n.2 (Pa. Cmwlth. 2007).
5
he requires the continued use of opioids to treat his severe pain, the opioids give
him somnolence, which is a recognized side effect of opioids, and, thus, in order to
counteract the somnolence, Provigil must be reasonable and necessary. The WCJ,
Claimant argues, capriciously disregarded this proof showing that his continued
use of Provigil is reasonable and necessary.
In a UR dispute presented to a WCJ, the employer, seeking to avoid the
payment of certain medical treatment, bears the burden of proving that the
treatment is not reasonable or necessary. AT&T v. Workers’ Comp. Appeal Bd.
(DiNapoli), 816 A.2d 355, 359-60 (Pa. Cmwlth. 2003). The burden remains on the
employer even if it prevails at the initial stage of UR. Id. at 360.
The WCJ is the ultimate fact-finder and “has exclusive province over
questions of credibility and evidentiary weight.” Anderson v. Workers’ Comp.
Appeal Bd. (Penn Ctr. for Rehab), 15 A.3d 944, 949 (Pa. Cmwlth. 2010). The
authority of the WCJ over issues “of credibility, conflicting evidence[,] and
evidentiary weight is unquestioned.” Minicozzi v. Workers’ Comp. Appeal Bd.
(Indus. Metal Plating, Inc.), 873 A.2d 25, 28 (Pa. Cmwlth. 2005). The WCJ “may
accept or reject the testimony of any witness, including a medical witness, in whole
or in part.” Id. We are bound by the credibility determinations of the WCJ. Id. at
29.
Moreover, it does not matter if “the record contains evidence to support
findings other than those made by the WCJ; the critical inquiry is whether there is
evidence to support the findings actually made.” Id. (internal quotation marks
omitted). “We examine the entire record to see if it contains [substantial] evidence
. . . to support the WCJ’s findings.” Id. “Substantial evidence is relevant evidence
that a reasonable person might accept as adequate to support a conclusion.”
6
Lindemuth v. Workers’ Comp. Appeal Bd. (Strishock Coal Co.), 134 A.3d 111, 125
n.12 (Pa. Cmwlth. 2016). In undertaking substantial evidence review, we “view
the evidence in the light most favorable to the party who prevailed before the WCJ
and draw all reasonable inferences from the evidence in favor of the prevailing
party.” Id.A capricious disregard of evidence occurs when the fact-finder deliberately
ignores relevant, competent evidence “that one of ordinary intelligence could not
possibly have avoided in reaching a result.” Wise v. Unemployment Comp. Bd. of
Review, 111 A.3d 1256, 1262 (Pa. Cmwlth. 2015). This requires “a deliberate and
baseless disregard of apparently trustworthy evidence.” Williams v. Workers’
Comp. Appeal Bd. (USX Corp.-Fairless Works), 862 A.2d 137, 144 (Pa. Cmwlth.
2004). If there is substantial evidence to support the WCJ’s factual findings, and
those findings support the WCJ’s conclusions, “it should remain a rare instance in
which an appellate court would disturb an adjudication based upon the capricious
disregard of material, competent evidence.” Id.Applying these principles here, the Board properly affirmed the
determination of the WCJ. Employer presented a UR report from Dr. Glass stating
that Provigil is prescribed to treat sleep apnea hypopnea syndrome, narcolepsy, or
shift work sleep disorder, which the WCJ credited. Claimant, undisputedly, does
not have any of these conditions. Dr. Glass further stated that “[t]here is no
evidence [in] the medical literature that Provigil is effective” in counteracting
somnolence that results from the prescription use of opioids. (R.R. at 8a; FOF ¶
6(c).)
Dr. Chawluk, in contrast, testified that there was medical literature to
support the use of Provigil to combat somnolence associated with prescription
7
opioid use but, when asked for the name of the literature, he said, “I can’t quote it
by verse.” (R.R. at 62a.) Dr. Chawluk noted that he was using Provigil in an “off-
label” fashion, meaning that he was using Provigil for some other purpose than that
for which the FDA had approved. Buckman Co. v. Plaintiffs’ Legal Comm., 531
U.S. 341, 350 (2001) (explaining that “off-label” use of a medical device is use of
a device “for some other purpose than that for which” it has been approved by the
FDA).4 He also testified that Provigil “is used fairly extensively in an off-label
fashion for daytime somnolence.” (R.R. at 60a; FOF ¶¶ 12-14.) However,
Claimant did not offer any proof that Provigil is effective in combating
somnolence associated with prescription opioid use. The fact that Provigil is used
to counter daytime somnolence generally does not prove that it is effective for the
somnolence that results from prescription opioid use. Indeed, the fact that when
Dr. Chawluk decreased the dose of opioids for Claimant, he did not experience
more wakefulness but required Provigil at the same dose as when he was taking a
higher dose of opioids, supports Dr. Glass’s statement that Provigil is not effective
in combating somnolence associated with the prescription use of opioids. (R.R. at
61a-62a); see Sell v. Workers’ Comp. Appeal Bd. (LNP Eng’g), 771 A.2d 1246,
1251 (Pa. 2001) (stating that this Court’s role in a workers’ compensation case is
simply to “determine whether, upon consideration of the evidence as a whole, the
WCJ’s findings have the requisite measure of support in the record”); see also
Bedford Somerset MHMR v. Workers’ Comp. Appeal Bd. (Turner), 51 A.3d 267,
274 (Pa. Cmwlth. 2012) (affirming WCJ’s determination that claimant’s use of
4
The FDA does not preclude physicians from using medical devices or, as here,
medication in an off-label fashion. “To the contrary, while the FDA regulates the marketing and
labeling of medical devices, it does not purport to interfere with the practice of medicine.”
Southard v. Temple Univ. Hosp., 781 A.2d 101, 104 (Pa. 2001).
8
Fentanyl lozenges was not reasonable and necessary because the medication was
approved only for pain associated with cancer due to the highly addictive nature of
the medication, and the claimant suffered from chronic pain due to a work injury
and subsequent surgeries, not cancer). In short, an examination of the entire record
shows that there is substantial evidence upon which the WCJ could conclude that
Claimant’s use of Provigil was not reasonable and necessary.5
Moreover, the WCJ did not capriciously disregard Claimant’s evidence
showing that his use of Provigil was reasonable and necessary. The competing
evidence the parties presented, and the substantial evidence that supports the
WCJ’s determination, “serve[s] to defeat [Claimant’s] assertion of capricious
disregard . . . .” Williams, 862 A.2d at 145 n.8. This is not a case where the WCJ
“refused to resolve conflicts in the evidence, has not made essential credibility
determinations or has completely ignored overwhelming evidence.” Wise, 111
A.3d at 1263.
Therefore, for the foregoing reasons, we affirm the Board’s Order.
_____________________________________
RENÉE COHN JUBELIRER, Judge
Judge Cosgrove concurs in result only.
5
The argument Claimant advances in his brief does not affect this conclusion. Whether
the opioid medication he takes gives him somnolence is not dispositive. What is dispositive is
whether Provigil is effective in treating somnolence associated with the prescription use of
opioids.
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jack Barnhart, :
Petitioner :
:
v. : No. 66 C.D. 2017
:
Workers’ Compensation Appeal :
Board (Tremont Borough), :
Respondent :
ORDER
NOW, August 16, 2017, the December 20, 2016 Order of the Workers’
Compensation Appeal Board entered in the above-captioned matter is
AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge