S. Jones v. WCAB (SEPTA)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Steven Jones, :
Petitioner :
:
v. : No. 533 C.D. 2019
: Submitted: August 9, 2019
:
Workers' Compensation Appeal :
Board (SEPTA), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ROBERT SIMPSON, Judge1
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: November 25, 2019
Steven Jones (Claimant) petitions for review of an order of the
Workers’ Compensation Appeal Board (Board) that affirmed an order of Workers’
Compensation Judge (WCJ) Andrea McCormick granting Southeastern
Pennsylvania Transportation Authority’s (Employer) termination petition. The
WCJ’s order also denied Claimant’s petitions for review of utilization review (UR)
determination (UR review petitions) and reinstatement petition. Claimant contends
the WCJ erred in terminating his benefits and in denying his UR review petitions in
light of the medical evidence. For the reasons that follow, we affirm.
1
This matter was assigned to this panel before September 1, 2019, when Judge Simpson
assumed the status of senior judge.
I. Background
A. History of Proceedings; Current Petitions
Claimant worked for Employer as a maintenance custodian driver. His
duties included heavy lifting and driving forklifts. In September 2001, Claimant fell
through an open grate, dropped 8 to 10 feet, and struck various body parts. Claimant
sustained work-related injuries described in an approved stipulation as sprain/strains
of the right ankle and cervical spine region, low back pain, and discomfort in both
shoulders.
In a February 2006 decision, WCJ Scott Olin determined that all work-
related disability of the right ankle, right knee, and low back ceased as of November
2004. However, WCJ Olin also determined that Claimant remained totally disabled
from symptoms related to his cervical spine and shoulder conditions.
In November 2011, WCJ McCormick modified Claimant’s benefits to
a 500-week period of partial disability based on an impairment rating evaluation of
35%. In April 2015, WCJ Denise Krass issued a decision denying Employer’s
termination, suspension and modification petitions based on a finding that
Claimant’s symptoms related to cervical spine and shoulders continued and
prevented him from returning to work in more than a light-duty capacity. In
particular, WCJ Krass determined that none of the jobs identified by Employer’s
vocational expert were sufficiently light duty in nature for Claimant.
In May 2017, Employer filed a new termination petition alleging
Claimant fully recovered from his work-related injuries as of March 2, 2017, based
2
on an independent medical examination (IME) performed by Dr. Dennis W. Ivill
(IME Physician). In July 2017, Claimant filed a reinstatement petition seeking to
modify his benefits from partial disability to ongoing total disability based upon the
Supreme Court’s decision in Protz v. Workers’ Compensation Appeal Board (Derry
Area School District), 161 A.3d 827 (Pa. 2017).
In August 2017, Dr. Stanley Askin completed a UR determination
finding that Claimant’s treatment by Dr. Randall N. Smith (Claimant’s Physician),
a board-certified orthopedic surgeon, from April 21, 2017, and ongoing, was
unreasonable and unnecessary. This included office visits at any frequency, the May
2017 MRI (magnetic resonance imaging) of the cervical spine, prescription
medications, over the counter aspirin (81 mg daily), and supplements. On the same
day, Dr. Nathan Schwartz completed a UR determination finding Claimant’s
treatment with Ms. Lydia A. Reese, L.Ac. (Acupuncturist), an acupuncture
practitioner, unreasonable and unnecessary after April 7, 2017. Claimant timely
filed UR review petitions regarding both UR determinations.
B. Employer’s Evidence
In support of its termination petition, Employer presented IME
Physician’s deposition testimony. IME Physician, board certified in physical
medicine and rehabilitation, reviewed Claimant’s numerous medical records. He
learned that Claimant began treatment with Dr. Richard H. Kaplan (Physiatrist), who
is board certified in physical medicine and rehabilitation, in 2003. Physiatrist, who
practices with Claimant’s Physician, treats Claimant with acupuncture, prescription
3
pain killers and sleeping pills. These medications include Tramadol,
Cyclobenzaprine, Ibuprofen, Lyrica and Relistor.
Claimant’s complaints included neck pain radiating down the bilateral
upper extremities over the shoulder into the elbow area. The pain was sharp and
constant. It increased with range of motion. Claimant also reported headaches that
felt like migraines and right ankle pain; neither of these two conditions were
determined to be related to Claimant’s work injury.
IME Physician also physically examined Claimant. IME Physician
noted that Claimant ambulated without an antalgic gait. Claimant’s neck
examination revealed normal curvature of the cervical spine, and no palpable trigger
points in the bilateral cervical paraspinal, levator scapulae or trapezius muscles.
Claimant had no pain in the spinous processes and a negative Spurling’s sign
bilaterally. Claimant’s bilateral upper extremities had normal reflexes and strength
throughout. Sensation was intact to light touch. The circumference of both arms
was the same. Claimant had negative Tinel’s at the bilateral greater occipital nerves,
bilateral elbows, and bilateral wrists. Claimant also had negative Phalen’s sign and
reverse Phalen’s. IME Physician also performed Jaymar hand grip dynamometer
testing, which showed inconsistencies.
IME Physician also evaluated Claimant’s lower extremities. His
objective physical examination findings were all normal.
4
Ultimately, IME Physician opined within a reasonable degree of
medical certainty that as of his March 2, 2017 examination, Claimant fully recovered
from his cervical sprain and strain, and his discomfort in both shoulders. Therefore,
IME Physician executed an affidavit of full recovery.
Employer also submitted into evidence a surveillance summary and
video of surveillance conducted in July 2017 by Prime Source Investigations
(Investigator). Surveillance observed Claimant lifting and carrying recycling and
trash cans to his neighbor’s porch and side yard. A photo showed Claimant lifting
the recycling bin over his head with his left arm.
Later in July 2017, Investigator observed Claimant, a Jehovah’s
Witness, standing on a corner talking to others before entering a vehicle with others
and returning to Kingdom Hall, their place of worship. Investigator also observed
Claimant pulling a large suitcase and setting up what appeared to be a portable
display of pamphlets. Claimant moved without restriction and gestured using his
hands and arms.
In opposition to Claimant’s UR review petition regarding Claimant’s
Physician’s care, Employer presented Dr. Askin’s UR determination report. Dr.
Askin reviewed Claimant’s office visits, medications and diagnostic studies from
April 21, 2017, and ongoing. Dr. Askin noted that Claimant’s Physician provided
palliative care for Claimant. However, Claimant’s Physician’s examinations did not
identify any atrophy, weakness, or sensory imperfection. Rather, Claimant’s
Physician’s examinations merely indicated pain and discomfort over the center of
5
the spine that has been unyielding despite the passage of time, acupuncture
treatment, and various medications.
Dr. Askin found that Claimant had no disc herniation, no neurologic
impairment and no surgery. Thus, Dr. Askin determined that from April 21, 2017,
and ongoing, all treatment rendered to Claimant by Claimant’s Physician was
unreasonable and unnecessary. This included office visits at any frequency, a May
2017 cervical spine MRI scan, prescription medications and supplements. Dr. Askin
based his assessment on the fact that Claimant’s Physician’s records showed no
treatment goals and did not appear to be changing the treatment modalities. Dr.
Askin also noted that there were no measurable gains in Claimant’s condition.
In opposition to Claimant’s UR review petition regarding
Acupuncturist’s care, Employer presented Dr. Schwartz’s UR determination report.
Dr. Schwartz reviewed Acupuncturist’s treatment of Claimant from April 7, 2017,
and ongoing. The doctor noted that Acupuncturist began treating Claimant in June
2007. At that time, Claimant complained of upper back and neck pain with right
shoulder/trapezius radiation. Claimant had been taking numerous medications.
Dr. Schwartz further reported that the documentation provided was
inadequate to support the treatment under review. Based on practice guidelines,
there is no support for acupuncture treatments for the diagnosis of cervical root
disorders, other cervical displacement, high cervical region, and other cervical disc
displacement in mid cervical regions. In addition, treatment with acupuncture is
typically applied after the failure of other traditional, conservative management
6
techniques. The goal of acupuncture is to restore the body’s natural energy flow,
thereby eliminating the need for endless acupuncture sessions. Dr. Schwartz
concluded that all of Acupuncturist’s treatment, from April 7, 2017, and ongoing,
was neither reasonable nor necessary.
C. Claimant’s Evidence
In opposition to Employer’s termination and in support of his UR
review petitions, Claimant presented the deposition testimony of Claimant’s
Physician. He first examined Claimant in October 2014. Claimant provided a
history of his 2001 work-related fall, which resulted in injuries to his right ankle,
neck, upper back and shoulders. Claimant informed Claimant’s Physician that he
still experienced problems with his neck, shoulders and upper back. Upon
examination, Claimant’s Physician noted that Claimant had spasms, tenderness and
lack of mobility of neck, shoulders and upper back. Claimant’s Physician
recommended medication and acupuncture. Also, Claimant’s Physician opined that
Claimant could perform some work.
Following his initial appointment, Claimant returned once a month to
see either Claimant’s Physician or Physiatrist. Claimant’s Physician last saw
Claimant in September 2017. At that time, Claimant continued to have pain in the
neck, upper back and shoulders. Claimant experienced tightness in his shoulders
and pain when he elevated them. Claimant also had a 50% range of motion in his
neck, requiring him to use mirrors while driving.
7
In May 2017, Claimant underwent an MRI scan and an EMG
(electromyography) test. The MRI scan of the cervical spine revealed degenerative
changes and protrusions at five different levels. Claimant’s Physician agreed that
Claimant had degenerative changes at almost every level and that the protrusions
could be degenerative in nature. Claimant’s Physician also agreed that Claimant
could work with restrictions of no lifting over 10 to 15 pounds, no overhead work,
no constant turning of the neck, no repetitive use of the arms, and, on an initial basis,
no more than 4 hours per day.
However, Claimant’s complaints of pain remained constant. In
addition to acupuncture which provides only temporary relief, Claimant’s Physician
prescribed Tramadol, Lyrica, Mobic, Lorzone, and Cyclobenzaprine.
Claimant also testified on his own behalf regarding his medical
treatment. Claimant began treating with Physiatrist in 2003. He began seeing
Claimant’s Physician in 2014. Claimant sees either Physiatrist or Claimant’s
Physician once a month. He also sees Acupuncturist once a week. Acupuncturist
performs acupuncture on Claimant’s head, neck and upper arms. Claimant testified
his symptoms have not changed since 2011. In addition, Claimant admitted he has
not looked for work since 2003.
Regarding the surveillance evidence, Claimant acknowledged lifting a
recycling bin weighing 5 to 10 pounds. He also drives his brother’s car. As a
Jehovah’s Witness, Claimant participates in activities three to four times a week.
8
His duties also include pulling a briefcase or cart. Sometimes, Claimant carries a
shoulder bag with pamphlets and a tablet.
D. Dispositive Findings
WCJ McCormick made the following dispositive findings. WCJ
McCormick found Claimant’s testimony credible in part. McCormick Op., 7/3/18,
Finding of Fact (F.F.) No. 16. The WCJ accepted Claimant’s testimony regarding
the work injury as fact. Id. WCJ McCormick also found credible Claimant’s
testimony regarding his participation in weekly activities as a Jehovah’s Witness.
Id. However, based on IME Physician’s testimony, WCJ McCormick rejected
Claimant’s testimony concerning his ongoing symptomatology and its impact on his
ability to return to work. Id.
Notably, WCJ McCormick found IME Physician’s opinions more
credible than those of Claimant’s Physician. F.F. No. 17. Where the opinions of the
two medical experts conflicted, the WCJ specifically rejected Claimant’s
Physician’s opinions. Id. In particular, WCJ McCormick rejected Claimant’s
Physician’s testimony that Claimant’s condition remained unchanged despite over a
decade of treatment. Id. To the contrary, the WCJ found that Claimant’s Physician’s
lack of findings undermined his opinions and that Claimant’s complaints of a lack
of range of motion and pain were purely subjective. Id. In short, WCJ McCormick
found Claimant’s Physician’s testimony “less than compelling” because his
disagreement with IME Physician’s testimony was based on Claimant’s continued
subjective complaints of pain. Id.
9
WCJ McCormick further found that IME Physician thoroughly
examined Claimant and reviewed his medical records for the last 10 years. F.F. No.
18. The WCJ found particularly significant the lack of any objective findings on
either examination or tests performed that would support a finding of ongoing
disability. Id. The WCJ also noted IME Physician’s compelling testimony that
Claimant is not in need of a step-down program to wean him off Tramadol, an opioid
medication. Id. Therefore, WCJ McCormick concluded that drug rehabilitation was
unnecessary. Id.
Summarizing, WCJ McCormick found that IME Physician’s opinions
of full recovery and ability to return to work were supported by the objectively
normal results of Claimant’s physical examination. F.F. No. 20. The WCJ also
credited IME Physician’s testimony that Claimant did not exhibit spasm upon
examination of the cervical spine as he had in the past. Id.
Further, although WCJ McCormick found that Claimant had only 50%
mobility of his cervical spine, the WCJ attributed that condition to non-work-related
degenerative disc disease. Id. To that point, WCJ McCormick specifically did not
find that Claimant’s work-related cervical sprain and strain aggravated Claimant’s
underlying degenerative cervical conditions. Id. In addition, the WCJ did not find
that Claimant’s bilateral shoulder discomfort disabled him or required work
restrictions. Id. WCJ McCormick also determined that Claimant did not require
further medical treatment for his work injury after IME Physician’s examination. Id.
10
Accordingly, WCJ McCormick granted Employer’s termination
petition effective March 2, 2017. The WCJ also denied Claimant’s two UR review
petitions on the basis that all medical treatment subject to UR review, rendered after
Claimant’s full recovery in March 2017, post-dated his full recovery, thereby
rendering the UR review petitions moot. F.F. No. 21.
On appeal, the Board affirmed. The Board noted that IME Physician’s
testimony of full recovery provided substantial, competent evidence to support the
WCJ’s grant of Employer’s termination petition. The Board also rejected Claimant’s
contention that Employer failed to establish a change in medical condition since the
prior IME rejected by WCJ Krass in her 2015 decision.
In so doing, the Board acknowledged that where an employer failed to
prevail in prior termination petitions, the employer must establish a change in the
claimant’s physical condition since the preceding disability adjudication. Lewis v.
Workers’ Comp. Appeal Bd. (Giles and Ransome, Inc.), 919 A.2d 922 (Pa. 2007).
A change in condition may be any change in a claimant’s well-being that affects his
ability to work. Delaware Cty. v. Workers’ Comp. Appeal Bd. (Browne), 964 A.2d
29 (Pa. Cmwlth. 2008). However, there must be a factual finding that the claimant’s
physical condition changed. Id. at 36.
Here, the Board observed that IME Physician examined Claimant in
March 2017, approximately three years after the previous IME. IME Physician
opined that Claimant’s physical condition improved to the point of full recovery. As
noted above, WCJ McCormick credited IME Physician’s opinion that as of the date
11
of his examination, Claimant fully recovered from his work-related cervical sprain
and strain, and his discomfort in both shoulders. F.F. Nos. 11(d), 17. Therefore, the
Board determined that IME Physician’s testimony established a change in
Claimant’s physical condition warranting a termination of Claimant’s benefits. Bd.
Op., 4/26/19, at 5. Claimant petitions for review.2
II. Discussion
A. Termination Petition
Claimant first contends the Board erred in affirming WCJ
McCormick’s termination of benefits as of the date of IME Physician’s March 2017
examination. In a termination petition the employer has the burden of proving by
substantial evidence that a claimant fully recovered from his work injury. Udvari v.
Workmen’s Comp. Appeal Bd. (USAir, Inc.), 705 A.2d 1290 (Pa. 1997).
Here, Claimant, citing Lewis, asserts IME Physician’s testimony fails
to show any change in his condition since the 2015 disability adjudication by WCJ
Krass. Claimant maintains the idea behind Lewis is to prevent serial termination
petitions using the same kind of evidence in the hopes of finding a WCJ who will
terminate benefits. Accepting the Board’s interpretation of Lewis in the present
case, Claimant argues that all an employer would ever have to show in a subsequent
termination petition is a later date of examination coupled with an opinion of full
recovery, no objective findings, and an ability to return to work. In short, Claimant
2
Our review is limited to determining whether the WCJ’s findings of fact are supported by
substantial evidence, whether an error of law was committed or whether constitutional rights were
violated. Phoenixville Hosp. v. Workers’ Comp. Appeal Bd. (Shoap), 81 A.3d 830 (Pa. 2013).
12
asserts that IME Physician’s testimony is the exact type of repetitive testimony that
the Supreme Court determined does not satisfy the burden of proof in a termination
petition. Therefore, Claimant maintains that IME Physician’s testimony does not
establish the necessary change in physical condition required by Lewis.
We disagree. In Baumann v. Workers’ Compensation Appeal Board
(Kellogg Co.), 147 A.3d 1283 (Pa. Cmwlth. 2016), we determined that when a WCJ
no longer finds a claimant’s subjective complaints of pain credible, the employer
established a change in physical condition sufficient to meet the Lewis standard. We
recognized that a determination as to whether a claimant’s subjective complaints of
pain are accepted is a question of fact for the WCJ.
In Baumann, a WCJ issued a 2009 decision denying a termination
petition on the basis that the claimant credibly testified he experienced ongoing
cervical and right arm pain despite an IME concluding that he fully recovered and
could return to work. The WCJ noted that the claimant’s complaints of pain were
consistent with his medical expert’s examination results.
Thereafter, the claimant, after further medical treatment and tests,
underwent a subsequent IME. Based upon his second examination and a review of
additional medical records, the IME physician opined that the claimant fully
recovered from all aspects of his work injury. A different WCJ accepted the IME
physician’s testimony as credible and rejected the claimant’s testimony as not
credible as to his ongoing complaints of pain. The new WCJ thus found that the
employer established a change in the claimant’s condition. On appeal, the Board
13
affirmed. In affirming the Board, we noted the IME physician’s credited opinions,
coupled with the WCJ’s rejection of the claimant’s subjective complaints of ongoing
pain, were sufficient to establish a change in the claimant’s condition under Lewis.
Here, in 2015 WCJ Krass rejected the testimony of Employer’s prior
IME physician that Claimant fully recovered from his work injury. WCJ Krass also
found credible and convincing Claimant’s testimony that he continued to suffer pain
and disability as a result of his work injury. See Ex. C-1 (Krass Op., 4/30/15, F.F.
Nos. 12, 14); Reproduced Record (R.R.) at 130a.
However, WCJ McCormick, in her July 2018 decision, found the
testimony and opinions of IME Physician more credible and persuasive than those
of Claimant’s Physician. McCormick Op., F.F. No. 17. The WCJ also stated several
objective reasons for her credibility findings. Id. Notably, the WCJ found
Claimant’s Physician’s testimony less than compelling because Claimant’s
Physician cited Claimant’s subjective complaints of ongoing pain as a reason for
disagreeing with IME Physician’s opinion of full recovery. Id.
WCJ McCormick further found that unlike Employer’s prior IME
physician, who admitted he did not review Claimant’s medical evidence, IME
Physician thoroughly examined Claimant and reviewed his medical records dating
back over 10 years. F.F. No. 18. In particular, the WCJ stated, “Significant to this
Judge is the nature of the current medical treatment and the lack of objective findings
both on examination and on test studies which would support a finding of ongoing
disability.” Id. WCJ McCormick also specifically rejected Claimant’s testimony of
14
ongoing symptomatology in favor of IME Physician’s testimony of full recovery.
F.F. No. 16.
The WCJ also found Employer’s surveillance evidence compelling.
F.F. No. 19. The video surveillance evidence showed Claimant lifting and carrying
books and bags while performing religious duties as a Jehovah’s Witness. Id. Thus,
the WCJ determined that the medical evidence and the video surveillance evidence
both showed that Claimant fully recovered from his work injury. Id.
As we noted in Baumann, neither the Board nor this Court may reweigh
the evidence or second guess a WCJ’s credibility determinations. In light of WCJ
McCormick’s findings, we hold that IME Physician’s testimony, that Claimant fully
recovered from his work injury with no residual symptomatology, combined with
WCJ McCormick’s determination that Claimant’s subjective complaints of ongoing
pain were not credible, established a change in Claimant’s physical condition
sufficient to terminate Claimant’s benefits under Baumann.
B. UR Review Petitions
Claimant also contends the Board erred in affirming WCJ
McCormick’s denial of his UR review petitions based on the medical evidence. He
asserts that in a UR review petition, the employer’s burden is to show that the
claimant’s treatment is no longer reasonable and necessary. Glick v. Workers’
Comp. Appeal Bd. (Concord Beverage Co.), 750 A.2d 919 (Pa. Cmwlth. 2000).
Further, Claimant maintains that treatment need not improve or cure a condition or
15
symptoms to be reasonable and necessary. Id. Rather, the temporary relief of
chronic symptoms can make treatment reasonable and necessary. Id.
Claimant argues IME Physician’s opinions are not legally competent to
support a denial of his UR review petitions for several reasons. Claimant asserts
IME Physician opined that opioids were inappropriate for more than two or three
weeks after the work injury, and that acupuncture was only reasonable for a period
of eight weeks after the injury. Claimant maintains that prior UR determinations
approved the use of opioid-based medication for longer periods than 2 to 3 weeks,
and the use of acupuncture for 8 to 10 years. Claimant further alleges that IME
Physician, in rendering his opinions, relied on guidelines from the Work Loss Data
Institute that have not been adopted in Pennsylvania. Because IME Physician based
his opinions on facts contradicted by the record, Claimant asserts WCJ McCormick
erred in relying on them to deny his UR review petitions.
WCJ McCormick determined Claimant fully recovered from his work
injury and terminated his benefits as of March 2, 2017. Thus, the treatment provided
to Claimant by Claimant’s Physician, from April 27, 2017 and ongoing, occurred
after the effective date of the termination. In short, because WCJ McCormick
determined that Claimant no longer needed further medical treatment for his work
injury after IME Physician’s March 2, 2017 examination, the treatment provided to
him after that date was not related to his work injury regardless of whether it was
reasonable and necessary. Corcoran v. Workers’ Comp. Appeal Bd. (Capital
Cities/Times Leader), 725 A.2d 868 (Pa. Cmwlth. 1999). We note that a UR
determination that treatment was reasonable and necessary does not establish that
16
the treatment was causally related to the work injury or that the claimant remained
disabled. Id.
Similarly, the treatment provided to Claimant by Acupuncturist after
April 7, 2017, which occurred after the date of the termination, could not be related
to his work injury regardless of whether it was reasonable and necessary. Id.
Consequently, we detect no error in the determinations by WCJ McCormick and the
Board that granting the termination petition rendered Claimant’s UR review
petitions moot.3 Summarizing, because Claimant no longer needed medical
treatment for his work injury at the time he received the treatment at issue in the UR
review petitions, Employer was not liable for payment for that treatment regardless
of whether it was reasonable and necessary. Id. Therefore, WCJ McCormick’s grant
of Employer’s termination petition, effective March 2, 2017, rendered Claimant’s
UR review petitions moot.
III. Conclusion
For the above reasons, we detect no error in the Board’s decision
affirming the WCJ’s order granting Employer’s termination petition and denying
Claimant’s UR review petitions. Accordingly, we affirm the Board’s order.
_________________________
ROBERT SIMPSON, Judge
3
A case is moot if there is no actual case or controversy in existence at all states of the
controversy. Pap’s A.M. v. City of Erie, 812 A.2d 591 (Pa. 2002).
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Steven Jones, :
Petitioner :
:
v. : No. 533 C.D. 2019
:
:
Workers' Compensation Appeal :
Board (SEPTA), :
Respondent :
ORDER
AND NOW, this 25th day of November, 2019, for the reasons stated in
the foregoing opinion, the order of the Workers’ Compensation Appeal Board is
AFFIRMED.
_______________________________
ROBERT SIMPSON, Judge