Greater Hazleton Health Alliance v. WCAB (Zito)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Greater Hazleton Health Alliance, :
Petitioner :
:
v. : No. 1309 C.D. 2018
: Submitted: January 18, 2019
Workers’ Compensation Appeal :
Board (Zito), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: June 6, 2019
Greater Hazleton Health Alliance (Employer) petitions for review of the
Order of the Workers’ Compensation Appeal Board (Board) that affirmed the
decision of Workers’ Compensation Judge (WCJ) Brian Hemak (WCJ Hemak) that,
in relevant part, granted the Penalty Petition filed by Marie Zito (Claimant).
Pertinently, WCJ Hemak found that Employer violated the Workers’ Compensation
Act1 (Act) by not paying for medications prescribed by Shailen Jalali, M.D., and
filled by Alliance Medication Services (Alliance), that were causally related to
Claimant’s work injury. WCJ Hemak directed Employer to pay for those
medications and imposed a 50-percent penalty. On appeal, Employer argues the
Board erred in affirming WCJ Hemak’s decision, which was based on WCJ Hemak
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 - 1041.4, 2501-2710.
crediting Dr. Jalali’s testimony, where Dr. Jalali’s treatment and diagnoses had been
previously rejected by WCJ Susan Caravaggio (WCJ Caravaggio), the Board, and
this Court in Zito v. Workers’ Compensation Appeal Board (Northeastern
Pennsylvania Health Alliance) (Pa. Cmwlth., No. 138 C.D. 2017, filed September
14, 2017) (Zito I). After review, we affirm the Board’s Order.
I. Background
A. Claimant’s Injury and Treatment Generally
On October 7, 2010, Claimant, a registered nurse, sustained a work-related
injury to her right hand, which was accepted by Employer in a notice of
compensation payable (NCP). Claimant received temporary total disability benefits
for a period of time, which were suspended when she returned to work with no loss
of earnings. She has received various treatments for this injury, including multiple
surgeries and medications to alleviate her pain, from various physicians. These
physicians include: Jay S. Talsania, M.D., the orthopedic surgeon who is primarily
responsible for the treatment of Claimant’s right hand injury; Eugene Gorski, M.D.,
Claimant’s primary care physician who was responsible for managing Claimant’s
pain medications; and Dr. Jalali, a pain management specialist who assumed
responsibility for managing Claimant’s medications on March 31, 2015. The current
Penalty Petition is based on Employer’s nonpayment of medications prescribed by
Dr. Jalali beginning in November 2015.
B. Prior Litigation
Claimant’s receipt of benefits and the payment of her medical bills for her
work-related injury have been the subject of much litigation. By decision and order
of April 15, 2014, WCJ Wayne Rapkin (WCJ Rapkin) granted Claimant’s
2
reinstatement, review, and penalty petitions. Claimant’s benefits were reinstated
from October 7, 2010, through November 10, 2010, and from August 23, 2012,
onward. WCJ Rapkin amended the description of the injury, based on the testimony
of Dr. Talsania, from “right hand,” as described in the NCP, to “scapholuna[t]e
ligament tear, status post scope and debridement, status post recent capsulodesis,
de[]Quervain’s tendonitis, index trigger, and cubital tunnel.” (WCJ Hemak
Decision, Findings of Fact (Hemak FOF) ¶¶ 2-3.) In addition, WCJ Rapkin ordered
Employer to pay penalties based on its “failure to pay medical bills on and after
August 23, 2012, and penalties for failure to reimburse Claimant’s mileage
expense[s] for medical treatment.” (Id. ¶ 3.)
On July 6, 2016, WCJ Caravaggio issued a decision2 denying Claimant’s
petitions to review compensation benefits and medical treatment and/or billing,
which Claimant filed on June 30, 2015. Zito I, slip op. at 1. Through these petitions,
Claimant “sought to expand the description of [her work-related] injury to include
brachial plexopathy, neuropathic pain, cervical radiculitis, rotator cuff injury[,] and
possible [Complex Regional Pain Syndrome] of the right upper extremity.” Id. at 3
(second alteration added). Claimant relied on Dr. Jalali’s opinion, and that of
another physician, that her work injury included those injuries. WCJ Caravaggio
did not credit those opinions, and, therefore, found that Claimant had not met her
2
Prior to WCJ Caravaggio’s July 2016 decision, she issued a decision on March 31, 2016,
granting penalty, reinstatement, and review petitions filed by Claimant. WCJ Caravaggio set aside
an impairment rating evaluation (IRE) and reinstated Claimant’s total disability benefits as of July
9, 2014, that had been modified based on the IRE. (Hemak FOF ¶ 4; WCJ Caravaggio Decision,
March 31, 2016, Conclusion of Law ¶ 3.) WCJ Caravaggio also directed Employer to pay the
medical bills that WCJ Rapkin had ordered Employer to pay, which had not been paid. She further
directed Employer to pay the 25-percent penalty on the unpaid medical bills imposed by WCJ
Rapkin, an additional 25-percent penalty on those unpaid medical bills, and a 50-percent penalty
“on the amount of penalties that [WCJ] Rapkin had previously ordered to be paid.” (Hemak FOF
¶ 4; WCJ Caravaggio Decision, March 31, 2016, Order.)
3
burden of proving that her work-related injury included these additional injuries. Id.
at 6-7. The Board affirmed WCJ Caravaggio’s decision on January 13, 2017, and
this Court affirmed in Zito I.
C. Current Penalty Petition
While Claimant’s appeals of WCJ Caravaggio’s July 2016 decision were
pending before the Board and this Court, Claimant filed the current Penalty Petition
on September 21, 2016, asserting that Employer was not paying for reasonable and
necessary medical expenses including medications prescribed by Dr. Jalali that were
causally related to her work injury.3 (Hemak FOF ¶ 7; Reproduced Record (R.R.) at
64a.) The Penalty Petition was assigned to WCJ Hemak, who held hearings at which
Claimant presented her own testimony and the deposition testimony of Dr. Jalali,
Alliance’s Office Manager, and Alliance’s Collections Manager.
Claimant testified as follows.4 Dr. Talsania initially prescribed the
medications for Claimant’s work-related injury, after which Dr. Gorski assumed
responsibility for her medications. Ultimately, Dr. Jalali took over her pain
management and, when he did, Claimant was required “to sign an agreement stating
that she would not seek or accept pain medication from any other physician.”
(Hemak FOF ¶ 12.) “The only change Dr. Jalali made to Claimant’s medications
3
Claimant filed a second penalty petition, asserting that Employer failed to consistently
pay her wage loss benefits. After Employer “could not provide any explanation for the gaps” in
the payments or its erratic payments, WCJ Hemak granted that penalty petition. (Hemak FOF
¶ 11; WCJ Hemak Decision, Conclusion of Law (Hemak COL) ¶¶ 2-3.) Employer did not appeal
that decision.
4
Claimant’s testimony is summarized in Hemak FOF ¶¶ 10-12 and is found at pages 99a-
107a and 119a-22a of the Reproduced Record.
4
was to switch [her] from Neurontin to Trilept[al] due to some side effects [she] was
experiencing with Neurontin.” (Id. ¶¶ 12, 15.)
Dr. Jalali’s January 10, 2017 deposition testimony5 set forth his professional
qualifications, a history of Claimant’s pain management regimen, and his treatment
of Claimant since he assumed her medication management in March 2015. He is
board-certified in pain management and anesthesiology, and has focused his practice
on pain management for the past 20 years. Claimant was referred to him, and her
primary complaint was and has remained right upper extremity pain. As part of
Claimant’s treatment with Dr. Jalali, Claimant undergoes random drug screening
and is required to agree annually not to obtain pain medication from other medical
providers. (R.R. at 136a-37a.) In terms of Claimant’s medications, “Dr. Jalali took
over Claimant’s anti-convulsant therapy, muscle relaxant therapy[,] and narcotic
management therapy.” (Hemak FOF ¶ 15.) As part of his management of
Claimant’s medications, Dr. Jalali added a long-acting opioid (Hysingla), switched
Percocet to Oxycodone because Claimant did not need the acetaminophen that is in
Percocet, changed Neurontin to Trileptal due to Claimant developing adverse
reactions to the former, and switched Tizanidine to Lorzone as the former was
causing sedation. (Id.; R.R. at 139a-40a.) Other than adding the Hysingla, Dr. Jalali
explained his medications did not differ significantly from those prescribed by Dr.
Gorski as he was prescribing the same classification of medications. (R.R. at 148a.)
In other words, he exchanged one narcotic medication for another, one anti-
convulsant medication for another, and one muscle relaxant for another. (Id. at 139a-
40a, 148a.) After further monitoring, Dr. Jalali switched Claimant from Lorzone to
5
This deposition testimony is summarized in Hemak FOF ¶ 15 and is found at pages 128a-
59a of the Reproduced Record. Attached to that deposition as an exhibit was Dr. Jalali’s deposition
testimony from Zito I.
5
Amrix due to an adverse reaction and added Melatonin to aid Claimant’s sleeping
patterns. He continued to monitor these medications to address Claimant’s
complaints of pain in her right upper extremity.
On September 13, 2016, Dr. Jalali changed his diagnoses from those he gave
in Zito I to the ones found to be work-related by WCJ Rapkin. This change, he
explained, “would not impact the medication management since the treatment would
remain the same regardless of the diagnosis attached to the condition.” (Hemak FOF
¶ 15.) Dr. Jalali opined this was because, regardless of the diagnoses, Claimant “had
a combination of localized pain as well as what appears to be neuropathic-type pain
as far as the pain being both aching as well as tender in nature.” (R.R. at 147a.) Dr.
Jalali confirmed the treatment he provides to Claimant is related to her October 7,
2010 work injury and the purpose of the treatment is “to address Claimant’s right
upper extremity pain.” (Hemak FOF ¶ 15.)
Office Manager testified in her deposition as follows.6 Alliance provides
workers’ compensation claimants pharmaceuticals, and started providing Claimant
her medications on June 2, 2015. Office Manager is responsible for submitting bills
to employers and, if payment is denied, a different Alliance department takes over.
On May 26, 2015, Alliance submitted letters of medical necessity by Dr. Jalali for
the prescriptions. A separate letter was submitted on August 20, 2016, for the
Amrix. Employer stopped paying for Claimant’s prescriptions on November 19,
2015. On various dates between November 20, 2015, and December 13, 2016,
Alliance submitted or resubmitted to Employer Health Care Finance Administration
(HCFA) forms, invoices, Workers’ Compensation Bureau LIBC-9 forms, and
prescriptions from Dr. Jalali reflecting the medications were for Claimant’s work-
6
This deposition testimony is summarized in Hemak FOF ¶ 16 and is found at pages 281a-
304a of the Reproduced Record.
6
related chronic intractable pain. Those forms and documents provided explanations
of why the medications were necessary to control Claimant’s right hand pain and
muscle spasms and to treat Claimant’s chronic intractable pain. (R.R. at 335a-40a,
345a-48a, 357a-60a, 369a-72a, 382a-85a, 404a-06a, 415a-18a, 427a-30a, 437a-40a,
447a-50a, 457a-60a, 466a-69a, 486a-88a, 503a.) With few exceptions, Employer
denied payment for these prescriptions. Alliance had most recently submitted the
above items to Employer for payment on January 10, 2017.
Collections Manager testified in her deposition as follows.7 After Alliance
submitted invoices and materials to Employer, Employer denied payment “per
adjuster’s request.” (Hemak FOF ¶ 17.) Alliance submitted numerous denied
invoices for fee reviews under the Act, challenging Employer’s denials. Numerous
Fee Review Determinations were issued directing Employer to pay Alliance for the
prescriptions, but Alliance never received payment from Employer. Other fee
reviews were denied due to lack of prescription or certificate of medical necessity,
but Alliance was appealing those determinations. Still, other fee reviews were
denied due to outstanding issues as to causal relatedness to the work injury. The
total outstanding balance for Claimant’s prescriptions was $39,592.67.
In its defense, Employer “explained that the subject bills were not being paid
in light of the Decision and Order of [WCJ] Caravaggio dated July 6, 2016, wherein
[WCJ] Caravaggio found that the diagnoses for which Dr. Jalali was treating
Claimant were not part of the work-related injury.” (Id. ¶ 10.)
7
This deposition testimony is summarized in Hemak FOF ¶ 17 and is found at pages 305a-
31a of the Reproduced Record.
7
D. WCJ Hemak’s Decision
Reviewing the evidence, WCJ Hemak noted that Employer did not present
“any expert testimony to contradict Dr. Jalali’s testimony nor any factual testimony
to contradict the testimony of” Office Manager and Collections Manager. WCJ
Hemak further explained that Employer has “not challenged the credibility of these
witnesses in any material respect.” (Id. ¶ 18.) Accordingly, WCJ Hemak accepted
that testimony as fact. (Id.) WCJ Hemak “specifically accepted” Dr. Jalali’s
testimony that the treatment and medications he has prescribed are directly related
to Claimant’s October 7, 2010 work injury. He rejected Employer’s arguments “that
the subject treatment is related to the diagnoses rejected in the Decision and Order
of [WCJ] Caravaggio dated July 6, 2016” because “Dr. Jalali credibly refute[d] that
argument and [Employer did] not present[] any evidence to suggest otherwise.” (Id.
¶ 19.) Based on his findings, WCJ Hemak found that Claimant met her burden of
proving that Employer violated the Act “by failing to pay Claimant’s work-related
prescription expenses[,] warranting an imposition of penalties in the amount of fifty-
percent (50%) of the outstanding prescription[s], . . . in light of the unreasonable
delay.”8 (WCJ Hemak Decision, Conclusion of Law ¶ 4.)
E. The Board’s Opinion
Employer appealed to the Board, arguing WCJ Hemak erred in granting the
Penalty Petition because Claimant was attempting to relitigate issues that were
decided by WCJ Caravaggio in her July 6, 2016 decision. Employer argued that the
question of its liability for the medications prescribed by Dr. Jalali was addressed in
that decision and, therefore, the current petition was barred by res judicata and/or
WCJ Hemak denied that part of Claimant’s penalty petition based on Employer’s
8
nonpayment of Dr. Jalali’s medical bills. (Hemak COL ¶ 5.) Claimant did not appeal that denial.
8
collateral estoppel. The Board disagreed, concluding that WCJ Caravaggio’s
decision concerned whether the description of Claimant’s injury should be
expanded. The Board held that, while Dr. Jalali offered testimony and was found
not to be credible in that case, WCJ Caravaggio’s decision did not address any
specific bills related to Dr. Jalali’s prescriptions, which is the issue in the current
proceeding. According to the Board, Dr. Jalali’s testimony in this matter, found
credible by WCJ Hemak, acknowledged the judicially determined injury and, using
that description, opined that the prescriptions are related to Claimant’s work injury.
Therefore, the Board held that neither the causes of action nor the issues were the
same and affirmed WCJ Hemak’s Decision. Employer now petitions this Court for
review.9
II. The Parties’ Arguments
On appeal, Employer argues that WCJ Hemak abused his discretion in
accepting Dr. Jalali’s testimony and granting the Penalty Petition because that
testimony was rejected by WCJ Caravaggio, and the issue of Employer’s liability
for any treatment provided or prescribed by Dr. Jalali was addressed in Zito I. In
that decision, Employer asserts, WCJ Caravaggio, and this Court, specifically
rejected Dr. Jalali’s treatment and diagnoses as not being causally related to
Claimant’s October 7, 2010 work injury. Employer argues that, through the petitions
in Zito I, Claimant also sought the payment for Dr. Jalali’s treatment and
9
This Court’s “review is limited to determining whether constitutional rights were violated,
whether the adjudication is in accordance with the law[,] or whether necessary findings of fact are
supported by substantial evidence.” City of Philadelphia v. Workers’ Comp. Appeal Bd.
(Sherlock), 934 A.2d 156, 159 n.5 (Pa. Cmwlth. 2007). “Substantial evidence is such relevant
evidence a reasonable mind might accept as adequate to support a conclusion.” WAWA v. Workers’
Comp. Appeal Bd. (Seltzer), 951 A.2d 405, 408 n.4 (Pa. Cmwlth. 2008).
9
prescriptions, which are at issue in the current penalty proceedings. Because this
issue was previously resolved in a final determination, Employer contends Claimant
is precluded from relitigating it under res judicata and/or collateral estoppel.
Employer asserts, therefore, that Claimant cannot meet her burden of proving that
Employer violated the Act by failing to pay for medical treatments that were causally
related to her work injury. Employer further challenges the finding that Dr. Jalali
prescribed the same medications as Dr. Gorski because Dr. Jalali actually prescribed
four new medications when he assumed responsibility for Claimant’s medications.
Claimant responds that WCJ Hemak and the Board correctly rejected
Employer’s claim that res judicata and/or collateral estoppel applies here because
she is not re-litigating an issue that has been previously decided. She contends that
WCJ Caravaggio’s July 6, 2016 decision, and this Court’s decision in Zito I,
concerned only whether the description of Claimant’s work injury should be
expanded. Claimant notes that WCJ Caravaggio “did not address any specific
medical bills related to Dr. Jalali’s prescriptions, which is the main subject of the
instant case,” and that Dr. Jalali provided new testimony indicating that the
medications he prescribed for Claimant were causally related to the injuries accepted
by WCJ Rapkin. (Claimant’s Brief at 18.) Citing the testimony of Office Manager,
Collections Manager, and Dr. Jalali offered in this matter, which WCJ Hemak
credited, Claimant argues that, notwithstanding the rejection of Dr. Jalali’s
diagnoses in Zito I, she met her burden of proving that Dr. Jalali’s prescriptions were
causally related to her October 7, 2010 work injury and that Employer violated the
Act when it refused to pay for those prescriptions.
10
III. Analysis
Section 306(f.1)(1)(i) of the Act provides, in relevant part, that “[t]he
employer shall provide payment in accordance with this section for reasonable
surgical and medical services, services rendered by physicians or other health care
providers, including an additional opinion when invasive surgery may be necessary,
medicines and supplies, as and when needed.” 77 P.S. § 531(1)(i). “Once the
employer’s liability for the work injury has been established, the employer may not
unilaterally stop making benefit payment[s] in the absence of a final receipt, an
agreement, a supersedeas[,] or any other order of the WCJ authorizing such action.”
McLaughlin v. Workers’ Comp. Appeal Bd. (St. Francis Country House), 808 A.2d
285, 288 (Pa. Cmwlth. 2002). If an employer does so, it can be liable for penalties
under the Act. Id. at 290.
Section 435(d)(i) of the Act, 77 P.S. § 991(d)(i),10 permits the imposition of
penalties where an employer violates the Act, rules, or regulations, which the
claimant bears the burden of proving. Shuster v. Workers’ Comp. Appeal Bd. (Pa.
Human Relations Comm’n), 745 A.2d 1282, 1288 (Pa. Cmwlth. 2000). If the
claimant establishes a violation, the employer may offer rebuttal evidence to show
that no violation occurred. Dep’t of Transp. v. Workers’ Comp. Appeal Bd.
(Clippinger), 38 A.3d 1037, 1047 (Pa. Cmwlth. 2011). A WCJ is not required to
award penalties, even if a violation of the Act is proven, and the decision to award
penalties, or not, is within the WCJ’s discretion. Budd Co. v. Workers’ Comp.
Appeal Bd. (Kan), 858 A.2d 170, 176 (Pa. Cmwlth. 2004). We will not reverse that
decision absent an abuse of discretion. Id.10
Section 435 was added by Section 3 of the Act of February 8, 1972.
11
Initially, we note that in the absence of WCJ Caravaggio’s July 6, 2016
decision and Zito I, the credited testimony of Dr. Jalali, Office Manager, and
Collections Manager supports the grant of the Penalty Petition and imposition of
penalties against Employer. There is no dispute that Claimant sustained numerous
work-related injuries, as found by WCJ Rapkin, and that she requires ongoing
medical treatment, including prescription medications, for those injuries. And,
there is nothing in the record indicating that Employer has obtained an order, final
receipt, or supersedeas ending its liability to pay for Claimant’s work injuries. Thus,
Employer remains liable to do so. 77 P.S. § 531(1)(i); McLaughlin, 808 A.2d at 288.
Dr. Jalali credibly testified that he assumed sole responsibility for Claimant’s
medications from Dr. Gorski and that Claimant agreed not to seek medications from
other physicians. After assuming responsibility for Claimant’s medications, Dr.
Jalali added a long-acting opioid and changed Claimant’s existing narcotic, anti-
convulsant, and muscle relaxant medications to those he believed better treated the
symptoms related to her work injuries, particularly her chronic pain, with fewer side
effects. Noting that Claimant’s symptomology remained the same from the
beginning of his treatment, Dr. Jalali opined the medications he prescribed were
causally related to Claimant’s October 7, 2010 work injury, regardless of whether
Claimant’s diagnoses were those found by WCJ Rapkin or those diagnoses Dr. Jalali
had opined. Office Manager credibly testified that Alliance properly submitted
invoices, forms, and other accompanying materials, which explained that the
prescriptions were for Claimant’s muscle spasms and right hand pain, to Employer
for payment. Collections Manager credibly explained that the majority of these
invoices remained unpaid, in the amount of $39,592.67, despite Fee Review
Determinations in Alliance’s favor directing Employer to pay the invoices.
12
Employer offered no rebuttal evidence beyond relying on WCJ Caravaggio’s July 6,
2016 decision. Because “a reasonable mind might accept [Claimant’s credited
evidence] as adequate to support a conclusion” that Employer violated the Act by
refusing to pay for medical treatment that was causally related to Claimant’s work
injury, there is substantial evidence to support WCJ Hemak’s Decision. WAWA v.
Workers’ Comp. Appeal Bd. (Seltzer), 951 A.2d 405, 408 n.4 (Pa. Cmwlth. 2008).
Additionally, WCJ Hemak cited Employer’s unreasonable delay in payment
as justification to impose the 50-percent penalty. Because Employer did not pay for
Claimant’s prescription medications from November 2015 until at least December
2016, despite there being Fee Review Determinations ordering Employer to do so,
this reason is supported by the record. Therefore, the WCJ did not abuse his
discretion in imposing the 50-percent penalty. Thus, unless the Penalty Petition is
barred by res judicata and/or collateral estoppel, WCJ Hemak’s decision will be
upheld.
Collateral estoppel prevents the re-litigation of an already-decided issue and
will apply in workers’ compensation proceedings when: (1) “the issue in the prior
adjudication was identical to the one presented in the later action”; (2) “there was a
final judgment on the merits”; (3) “the party against whom the plea is asserted was
a party or in privity with a party to the prior adjudication”; (4) “the party against
whom it is asserted has had a full and fair opportunity to litigate the issue in a prior
action”; and (5) “the determination in the prior proceeding was essential to the
judgment.” Callaghan v. Workers’ Comp. Appeal Bd. (City of Phila.), 750 A.2d
408, 412 (Pa. Cmwlth. 2000). Technical res judicata, or claim preclusion, applies
where the following is the same: (1) the “identity of the thing sued upon or for”; (2)
the “identity of the cause of action”; (3) the “identity of the persons and parties to
13
the action”; and (4) the “identity of the quality or capacity of the parties suing or
sued.” Weney v. Workers’ Comp. Appeal Bd. (Mac Sprinkler Sys., Inc.), 960 A.2d
949, 954 (Pa. Cmwlth. 2008) (citation omitted). “[C]auses of action are identical
when the subject matter and the ultimate issues are the same in both the old and the
new proceedings.” Henion v. Workers’ Comp. Appeal Bd. (Firpo & Sons, Inc.), 776
A.2d 362, 366 (Pa. Cmwlth. 2001).
Applying these principles here, we discern no error in the Board’s conclusion
that neither collateral estoppel nor res judicata precluded WCJ Hemak from granting
the Penalty Petition. The issue before WCJ Caravaggio was whether the description
of Claimant’s injury should be expanded and that is what WCJ Caravaggio addressed
in her decision. While Dr. Jalali testified regarding what he believed were more
accurate diagnoses of Claimant’s work injury, WCJ Caravaggio did not find that
testimony credible and denied Claimant’s request to expand the description of her
injury for failing to satisfy her burden of proof, which this Court affirmed in Zito I.
Although there was a petition regarding medical expenses, absent from WCJ
Caravaggio’s decision was discussion of any specific medical bills related to Dr.
Jalali’s prescriptions. In the current matter, the main issue is not the description of
Claimant’s work injury, as it was before WCJ Caravaggio, but whether Employer
violated the Act by not paying Claimant’s medical bills for her prescription
medications. Thus, the issues before WCJ Caravaggio in the prior proceeding and
before WCJ Hemak in the current proceeding are not identical. Further, as WCJ
Caravaggio did not address any medical bills in her decision, it cannot be said that
the resolution of that issue “was essential to the judgment” in the prior proceeding.
Callaghan, 750 A.2d at 412. As for technical res judicata, because “the subject
matter and the ultimate issues” are not the same in the prior proceedings before WCJ
14
Caravaggio and the current proceedings before WCJ Hemak, the “causes of action”
in the old and new proceedings are not the same. Henion, 776 A.2d at 366. For
these reasons, neither collateral estoppel nor res judicata bar the grant of the Penalty
Petition here.
In addition, we are unpersuaded by Employer’s alternative arguments for
reversing. First, Employer appears to argue that because WCJ Caravaggio found Dr.
Jalali not credible as to the new diagnoses, WCJ Hemak could not consider Dr.
Jalali’s testimony that the treatment was related to diagnoses found to be work-
related by WCJ Rapkin. The WCJ is the ultimate fact finder and sole arbiter of
credibility and evidentiary weight. Greenwich Collieries v. Workmen’s Comp.
Appeal Bd. (Buck), 664 A.2d 703, 706 (Pa. Cmwlth. 1995). In the current
proceeding, Dr. Jalali did not reiterate his prior opinions that Claimant’s work injury
was something other than that found by WCJ Rapkin. Instead, Dr. Jalali provided
new testimony, acknowledging the judicially accepted description of Claimant’s
work injury and, based on that description, opining that the prescriptions had been
and were causally related to Claimant’s work injury. Dr. Jalali explained that
Claimant’s symptoms remained the same from when he first began treating her in
March 2015, prior to any attempt to expand the description of her work injury, and
that his treatment of those symptoms would be the same regardless of the diagnoses
used. Acting as the fact finder in this case, WCJ Hemak was authorized to make
his own credibility determinations and factual findings relevant to the questions
before him. He did so, accepting the evidence presented by Claimant as credible
and finding that Claimant met her burden of proof on her current Penalty Petition.
Thus, this is not a basis to reverse the grant of the Penalty Petition.
15
Second, Employer challenges WCJ Hemak’s finding that Dr. Jalali did not
change Claimant’s medications as not being supported by the record because Dr.
Jalali prescribed four “new” medications. However, a review of Dr. Jalali’s credited
testimony reveals that while the specific medications he prescribed Claimant
differed from those prescribed by Dr. Gorski, those medications were of the same
type as had been previously prescribed. Utilizing his expertise as a board-certified
anesthesiologist and pain medication specialist, Dr. Jalali reviewed Dr. Gorski’s
treatment and concluded the particular medications prescribed were not the best
suited for Claimant’s symptoms and the side effects she was experiencing.
Therefore, Dr. Jalali changed those medications to alternatives he believed would be
better for Claimant. Reviewing, as we must, this credited evidence in the light most
favorable to the party that prevailed before WCJ Hemak, WAWA, 951 A.2d at 408,
WCJ Hemak’s finding is supported by substantial evidence. Accordingly, this, too,
is not a basis for reversing the grant of the Penalty Petition.
For the foregoing reasons, the Board’s Order is affirmed.
_____________________________________
RENÉE COHN JUBELIRER, Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Greater Hazleton Health Alliance, :
Petitioner :
:
v. : No. 1309 C.D. 2018
:
Workers’ Compensation Appeal :
Board (Zito), :
Respondent :
ORDER
NOW, June 6, 2019, the Order of Workers’ Compensation Appeal Board,
entered in the above-captioned matter, is AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge