H. Gillot v. Visiting Nurse Assoc. of Greater Philadelphia (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Hulda Gillot, :
Petitioner :
: No. 387 C.D. 2021
v. :
: Submitted: October 15, 2021
Visiting Nurse Association of Greater :
Philadelphia (Workers’ Compensation :
Appeal Board), :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: August 30, 2022
Hulda Gillot (Claimant) petitions for review of the March 10, 2021
adjudication of the Workers’ Compensation Appeal Board (Board), which affirmed the
decision of the Workers’ Compensation Judge (WCJ) denying her petition for review
of utilization review (UR) determinations filed against the Visiting Nurse Association
of Greater Philadelphia (Employer). Claimant contends that Employer’s UR requests
were untimely, and that Employer did not meet its burden of proving her medical
treatment was unreasonable and unnecessary because palliative care was not addressed.
Following review, we affirm.
On November 10, 2016, Claimant sustained an injury while working for
Employer. Claimant filed a claim petition on December 13, 2016,1 alleging that she
sustained multiple injuries at work, resulting in a disability. On December 14, 2016,
Employer issued a medical-only notice of temporary compensation payable (NTCP)
pursuant to the provisions of the Workers’ Compensation Act (Act),2 acknowledging
that a work injury occurred, but disputing that it caused a disability.3 On February 9,
2017, the NTCP converted to an NCP.4 On November 26, 2018, a WCJ granted
Claimant’s claim petition and found that her work injuries included a closed head
injury, post-concussion syndrome, right shoulder rotator cuff tear, lumbar strain and
sprain, left-sided lumbar radiculopathy, left hip sprain, and severe right foot contusion.5
On December 12, 2018, Employer filed UR requests to determine if
Claimant’s treatments from the following five providers were reasonable and
necessary: Angela Mess, D.C.; Michael Schaeffer, D.P.M.; Eddie T. Carvajal, L.Ac.;
George L. Rodriguez, M.D. (Dr. Rodriguez); and John Eshleman, D.O. The UR
reviewers (Reviewer or Reviewers) determined (1) that the chiropractic treatment
provided by Mess was not reasonable or necessary from November 2,6 2016, and
ongoing, because Mess’s documentation lacked a detailed history, examination,
diagnosis, or treatment plan for Claimant; (2) that the podiatric treatment provided by
Schaeffer was not reasonable or necessary from November 10, 2016, and ongoing,
1
This date is taken from page 5 of Claimant’s brief; it is not part of the certified record.
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
3
The Board noted that the NTCP was not included in the record before it, and, thus, it could
not determine what injuries were accepted by Employer. (Board Op. at 1 n.1.) In its brief to this
Court, Employer states that it recognized “a low back contusion.” (Employer’s Br. at 5.)
4
The date the NTCP was issued and the date it converted to an NCP are taken from page 5 of
Claimant’s brief, as the dates are not part of the certified record.
5
The Board noted that the November 26, 2018 decision granting the claim petition was not
included in the record before it.
6
November “2” may be a typographical error, as the injury occurred on November 10, 2016.
2
because there was no evidence Claimant had ongoing soft tissue injuries and the
treatments would not benefit her foot injury or its preexisting arthritic changes; (3) that
all acupuncture treatment performed by Carvajal was not reasonable or necessary
because clinical guidelines only recommend 12 visits for patients with Claimant’s
diagnoses, which had been surpassed prior to the treatment period under review; (4)
that the treatments provided by Dr. Rodriguez were not reasonable or necessary after
June 21, 2018, because he was only monitoring Claimant’s treatment and the various
passive therapy modalities he used to treat Claimant did not address chronic pain and
the activity therapy modalities he used to treat Claimant were only warranted for 12
visits, which had been surpassed prior to the treatment period under review; and (5)
that all treatment provided by Eshleman was reasonable and necessary from November
10, 2016, and ongoing. (WCJ Decision of 6/24/2020, at 3; Board Op. at 2-3.)
In response, Claimant filed a petition for review of the UR determinations
as to all providers7 to the WCJ. Thereafter, Employer submitted the UR determinations
and Claimant submitted a report from Dr. Rodriguez, her current primary treating
physician for her work injuries. Additionally, Claimant provided testimony before the
WCJ.8
Claimant testified before the WCJ that she was currently receiving
physical therapy, chiropractic adjustments, acupuncture treatments, and massage
through Dr. Rodriguez’s office. (Certified Record (C.R.) Item No. 10, Hearing
Transcript (H.T.) of 6/12/2019, at 6-8.)9 At first, the treatments were three times a
7
Notably, the UR determination regarding Eshleman found in Claimant’s favor.
8
While Claimant challenged the UR determinations regarding all her providers, her testimony
principally addressed her current treatment with Dr. Rodriguez. Also, Dr. Rodriguez’s report,
(Certified Record (C.R.) Item No. 12), was limited to the treatment he provided Claimant.
9
She discontinued treatment with Eshleman and began treatment with Dr. Rodriguez. (C.R.
Item No. 10, Hearing Transcript (H.T.) of 6/12/2019, at 10.)
3
week; they were then reduced to twice a week and currently they are once a week. (Id.
at 8.) Claimant stated that the treatments themselves have remained the same and that
her condition is “[a]lmost the same because” she “still cannot use [her] shoulder” and
her back is “terrible.” Id. However, she claimed that the treatments helped her to “pick
up [her] feet and walk a little bit[,]” and, specifically, the massage helped her back
pain. (Id. at 9-10.) She once missed a weekly treatment and became stiff and had to
take pain medication. (Id. at 11-12.) However, even when she has therapy, these
painful episodes can happen at any time. (Id. at 12.)
Following review, the WCJ found Claimant’s testimony not credible
regarding the reasonableness and necessity of her treatment. (WCJ Decision, Finding
of Fact (F.F.) No. 7.) The WCJ based this determination on Claimant’s demeanor while
testifying and because there was no indication that the treatment helped or improved
Claimant’s overall work-related symptoms. (Id.) The WCJ also found the reports of
the UR Reviewers to be more credible than the opinions expressed by Dr. Rodriguez
in his report. (F.F. No. 8.) The WCJ noted that the reports of the UR Reviewers were
based on industry standards and guidelines and that Dr. Rodriguez’s report “reads as a
condescending justification of [his] treatment.” (Id.) The WCJ therefore found that
Employer met its burden of establishing that Claimant’s medical treatment was
unreasonable and unnecessary, except for Eshleman’s, who received a favorable
review by Employer and whose treatment was not challenged before the WCJ. (F.F.
Nos. 7-12.)10 Accordingly, the WCJ denied Claimant’s petition for review.
10
Additionally, on August 15, 2019, the WCJ approved a Compromise and Release
Agreement settling Claimant’s claim for indemnity benefits. (C.R. Item No. 11, H.T. of 8/12/2019.)
The parties agreed that Employer remained responsible for medical benefits and that litigation would
continue regarding Claimant’s petition for review of UR determinations. (Id. at 15-16; Claimant’s
Br. at 7.)
4
Claimant appealed to the Board. Claimant first argued that the WCJ failed
to address her claim that Employer’s UR requests were untimely. Employer filed its
UR requests 16 days after the claim petition was granted on November 26, 2018.
However, Employer challenged Claimant’s medical treatments from 2016 onward,
despite having accepted a medical-only NTCP in 2016. Thus, Claimant argues,
Employer should have challenged the prior treatments years earlier, but failed to do so.
As such, Claimant contended that Employer’s UR requests were untimely.
The Board determined that the WCJ did not err in failing to address the
issue because Claimant presented no evidence that the UR requests were untimely. The
Workers’ Compensation Medical Cost Containment Regulations require an employer
to request retrospective UR “within 30 days of the receipt of the bill and medical
report” but where “contesting liability for the underlying claim, the 30 days in which
to request retrospective UR is tolled pending an acceptance or determination of
liability.” 34 Pa. Code § 127.404(b). Here, no evidence was submitted establishing
when the medical bills and reports wer submitted. There was also no showing what
injury/injuries Employer accepted because the medical-only NTCP was not submitted
into evidence. Clearly, Employer did not accept many of Claimant’s injuries, as she
had to file a claim petition to receive benefits for a closed head injury, post-concussion
syndrome, right shoulder rotator cuff tear, lumbar strain and sprain, left-sided lumbar
radiculopathy, left hip sprain, and severe right foot contusion. As such, the record
evidence did not support Claimant’s contention that the UR requests were untimely.
Claimant’s second claim was that Employer did not meet its burden of
proving her medical treatment was unreasonable and unnecessary because its evidence
did not discuss the palliative nature of the care under review. The Board acknowledged
that medical treatment that is solely palliative can be found to be reasonable and
5
necessary. However, the WCJ determines whether the palliative treatment has
improved a claimant’s symptoms. Here, the WCJ did not credit Claimant’s testimony
that any of her treatments improved her symptoms. Further, the WCJ credited the UR
Reviewers’ findings, wherein there is no documentation from Claimant’s providers that
she had palliative improvement. Thus, the Board determined that the WCJ did not err
in concluding the treatments that were intended for palliative care were not reasonable
or necessary and affirmed the WCJ.11
Claimant petitions for review to this Court;12 her issues are twofold.
Claimant argues that (1) Employer’s UR requests were untimely because they were
filed nearly two years after liability was established via a medical-only NTCP; and (2)
Employer did not meet its burden of proving her medical treatment was unreasonable
and unnecessary.
We begin with a review of the UR process, which is the exclusive way to
challenge medical bills; neither a WCJ nor the Board has jurisdiction to determine the
reasonableness of medical treatment unless and until a report is issued and the
Utilization Review Organization (URO) issues a determination. Warminster
Fiberglass v. Workers’ Compensation Appeal Board (Jorge), 708 A.2d 517, 521 (Pa.
Cmwlth. 1998). If the health care provider, employer, employee, or insurer disagrees
with the determination of the URO, he may, within 30 days of the URO’s
determination, seek review by a WCJ. Section 306(f.1)(6)(iv) of the Act, 77 P.S. §
531(6)(iv); 34 Pa. Code § 127.551. This hearing before the WCJ is a de novo
11
Claimant also argued that the UR determinations were incompetent because they were
authored by physicians who did not have the same or similar specialties of care as her medical
providers. Claimant has not raised this claim to this Court; thus, we will not address it further.
12
This Court reviews the WCJ’s adjudication to determine whether the necessary findings of
fact are supported by substantial evidence, whether Board procedures were violated, whether
constitutional rights were violated, or whether an error of law was committed. MV Transportation v.
Workers’ Compensation Appeal Board (Harrington), 990 A.2d 118, 120 n.3 (Pa. Cmwlth. 2010).
6
proceeding; the WCJ is required to consider the reviewer’s report as evidence, but he
is not bound by it. Section 306(f.1)(6)(iv) of the Act, 77 P.S. § 531(6)(iv);13 34 Pa.
Code § 127.556.14Review by the URO is narrow in scope; it decides only the reasonableness
or necessity of the treatment at issue. 34 Pa. Code § 127.406(a). The URO may not
decide the causal relationship between the treatment under review and the employee’s
work-related injury or the issue of whether the employee is still disabled. 34 Pa. Code
§ 127.406(b)(1)-(2). The UR process is not properly invoked where the employer
disputes liability for medical treatment because it is not causally related to the original
work-related injury; such a challenge must be addressed to a WCJ. Bloom v.
Workmen’s Compensation Appeal Board (Keystone Pretzel Bakery), 677 A.2d 1314,
1317-18 (Pa. Cmwlth. 1996). UR is available only where the employer’s liability for
a claimant’s medical treatment has been established, either by agreement or by
13
Section 306(f.1)(6)(iv) of the Act provides:
If the provider, employer, employe or insurer disagrees with the finding
of the utilization review organization, a petition for review by the
department must be filed within thirty (30) days after receipt of the
report. The department shall assign the petition to a workers’
compensation judge for a hearing or for an informal conference under
section 402.1. The utilization review report shall be part of the record
before the workers’ compensation judge. The workers’ compensation
judge shall consider the utilization review report as evidence but shall
not be bound by the report.
77 P.S. § 531(6)(iv).
14
34 Pa. Code § 127.556 provides that “[t]he hearing before the workers’ compensation judge
shall be a de novo proceeding. The URO report shall be part of the record before the workers’
compensation judge and the workers’ compensation judge shall consider the report as evidence. The
workers’ compensation judge will not be bound by the URO report.”
7
litigation; its purpose is to permit oversight of the treatment of an injury and its cost.
Id.Pursuant to Section 127.404 of the Medical Cost Containment
Regulations:
(a) UR of treatment may be prospective, concurrent or
retrospective, and may be requested by any party eligible to request
UR under § 127.401(c) (relating to purpose/review of medical
treatment).
(b) If an insurer or employer seeks retrospective review of
treatment, the request for UR shall be filed within 30 days of the
receipt of the bill and medical report for the treatment at issue.
Failure to comply with the 30-day time period shall result in a
waiver of retrospective review. If the insurer is contesting liability
for the underlying claim, the 30 days in which to request
retrospective UR is tolled pending an acceptance or determination
of liability.
34 Pa. Code § 127.404 (emphasis added). Additionally,
(a) In medical[-]only cases, when an insurer is paying for an injured
worker’s medical treatment but has not either filed documents with
the Bureau admitting liability for a work-related injury nor has there
been a determination to the effect, the insurer may still seek review
of the reasonableness or necessity of the treatment by filing a
request for UR.
(b) If the insurer files a request for UR in a medical[-]only case, the
insurer is responsible for paying for the costs of the UR.
(c) If the insurer files a request for UR in a medical[-]only case,
then the insurer shall be liable to pay for treatment found to be
reasonable or necessary by an uncontested UR determination.
34 Pa. Code § 127.405 (emphasis added).
8
In her brief, Claimant contends that Employer accepted liability for her
medical bills via the 2016 medical only NTCP. Thus, the UR requests Employer filed
on December 12, 2018, are well beyond the 30-day appeal period set forth in Section
127.404 of the Medical Cost Containment Regulations. 34 Pa. Code § 127.404.
Claimant argues that when her claim petition was granted on November 26, 2018, it
merely expanded the description of her injuries; it did not negate the fact that Employer
was liable for her medical treatment since 2016. Claimant contends that Employer
could have filed its UR requests at that time pursuant to Section 127.405 of the Medical
Cost Containment Regulations (permitting UR requests in medical-only cases). 34 Pa.
Code § 127.405. As such, according to Claimant, Employer cannot use the grant of the
claim petition as an excuse for failing to pay more than two years’ worth of medical
treatment.15
We agree with Employer that the record before the Court does not
demonstrate that any of its UR requests were untimely. In fact, the record before us
does not even establish the nature of the injury that was accepted in the 2016 medical
only NTCP. Further, we do know, based on the fact that Claimant filed a claim petition,
that she professed to have suffered from injuries not encompassed in the NTCP.
Employer claims that it did not seek review of Claimant’s medical treatments until the
claim petition was granted in 2018, because it had contested liability for those injuries.
15
Employer responds that Claimant ignores that the 2016 medical only NTCP accepted
liability for one injury, a low back contusion. It contends there is no evidence of record that
establishes that any of the medical treatments from 2016 through 2018 were solely related to a low
back contusion. Pointedly, Claimant makes no such claim. Further, the evidence of record does
establish that Claimant alleged to have sustained additional injuries other than the accepted low back
contusion, i.e., Claimant filed a claim petition and successfully argued that she also suffered from a
closed head injury, post-concussion syndrome, right shoulder rotator cuff tear, lumbar strain and
sprain, left-sided lumbar radiculopathy, left hip sprain, and severe right foot contusion. Thus, her
medical treatments obviously encompassed more than the accepted low back contusion.
9
Section 127.404(b) of the Medical Cost Containment Regulations plainly states that
“[i]f the insurer is contesting liability for the underlying claim, the 30 days in which to
request retrospective UR is tolled pending an acceptance or determination of liability.”
34 Pa. Code § 127.404(b). Undoubtedly, Employer was contesting liability for at least
some of Claimant’s injuries or she would not have needed to file a claim petition.
Despite this, Claimant insists that Employer was obligated to seek UR earlier because
Section 127.405 of the Medical Cost Containment Regulations permits it to seek UR
in medical only cases even if it has not admitted liability for the work injury. 34 Pa.
Code § 127.405. Claimant fails to address the full language of the regulation in making
this claim, specifically, the language limiting UR to cases “when an insurer is paying
for an injured worker’s medical treatment.”
In analyzing Section 127.405 of the Medical Cost Containment
Regulations, this Court has explained that the insurer/employer may only seek UR in
medical only cases “after [it] has begun paying for medical treatments.” Armstrong v.
Workers’ Compensation Appeal Board (Haines & Kibblehouse, Inc.), 931 A.2d 827,
830 (Pa. Cmwlth. 2007) (citing Krouse v. Workers’ Compensation Appeal Board
(Barrier Enterprises, Inc.), 837 A.2d 671 (Pa. Cmwlth. 2003)). In Krouse, Judge
Pellegrini issued a concurring opinion to highlight that UR requests filed pursuant to
Section 127.405 can only be filed (1) after liability has been accepted, or (2) after “the
insurer has begun paying for medical treatments.” 837 A.2d at 676 (Pellegrini, J.,
concurring). Here, the evidence of record does not show that Employer even began
making payments for Claimant’s medical treatments prior to the grant of her claim
10
petition in 2018. Thus, Claimant has failed to show that Section 127.405 is applicable
to her case.16
Further, Claimant does not assert that any of her medical treatments
related solely to the injury accepted in the 2016 medical-only NTCP. As noted by the
Board, such an analysis could not be attempted in this case because Claimant did not
introduce the NTCP into evidence. (Board Op. at 10.) Thus, Claimant’s argument that
Employer’s UR requests were untimely because it was obligated to challenge her
medical treatments because they were accepted by the 2016 medical-only NTCP is not
based on any evidence of record. As such, Claimant’s first contention of error is
meritless.
Second, Claimant asserts that Employer did not meet its burden of proving
the treatments under review were not reasonable and necessary because it did not offer
evidence regarding the palliative nature of the care. Claimant argues that treatment is
reasonable and necessary even if it is not designed to cure and improve the injuries, but
instead helps to manage symptoms. Claimant cites to Cruz v. Workers’ Compensation
Appeal Board (Philadelphia Club), 728 A.2d 413, 417 (Pa. Cmwlth. 1999), wherein
this Court stated that treatment designed to manage a claimant’s ongoing pain, even if
it does not functionally improve or cure the claimant’s condition, may be deemed
reasonable and necessary.
Employer responds that the WCJ expressly considered the palliative
nature of Claimant’s care but rejected its reasonableness and necessity based on the
evidence of record. The WCJ noted that Claimant claimed some treatments were
16
Additionally, we note that Section 127.405 is not mandatory. It merely advises that “the
insurer may . . . seek review of the reasonableness or necessity of the treatment by filing a request for
UR.” 34 Pa. Code § 127.405(a).
11
providing pain relief. However, the WCJ did not find Claimant credible that the
treatments were improving Claimant’s pain on an ongoing basis.
“Treatment may be reasonable and necessary even if it is designed to
manage the claimant’s symptoms rather than to cure or permanently improve the
underlying condition.” Hughes v. Wawa, Inc. (Workers’ Compensation Appeal Board),
271 A.3d 922, 935 (Pa. Cmwlth. 2021). Thus, “the WCJ should consider evidence of
the palliative effect of treatments under review and weigh that evidence in deciding a
UR petition.” Id. In deciding the issue, the WCJ, “as the ultimate finder of fact and
the sole authority for determining the weight and credibility of evidence, . . . may accept
or reject the testimony of any witness in whole or in part[.]” Id. at 936.
In her brief, Claimant does not point to specific treatments provided to her
that were allegedly palliative in nature, but discounted by the Reviewers, the WCJ, or
the Board. Instead, she claims that Employer had the burden of proof to establish her
treatments were not reasonable and necessary and that, to meet this burden, it must
prove the treatments were not palliative in nature. First, Claimant cites to no case law
that would require an employer to examine every treatment provided and present
evidence the treatments are not palliative in nature when neither the provider nor the
claimant claims that was the reason for the treatments. Second, in Cruz, it was the
medical provider that claimed the claimant’s treatments were to control his pain level,
not to cure his underlying pathology, and a UR reviewer that found the treatments were
not reasonable and necessary because they were designed only to control the claimant’s
pain, not to cure his condition. Cruz. 728 at 416-17. This Court responded that
“treatment may be reasonable and necessary even if it is designed to manage the
claimant’s symptoms rather than to cure or permanently improve the underlying
condition.” Id. at 417. We determined that the employer “bore the burden of refuting”
12
the medical provider’s claim that the treatment “was a reasonable and necessary
manner of managing [the claimant’s] chronic pain.” Id. Thus, Cruz does not suggest
that an employer must raise the issue of palliative care. It establishes that when
evidence is presented that the treatment is palliative in nature, the employer bears the
burden of refuting it.
Before the WCJ, Claimant testified that some of her treatments were to
help alleviate her pain, i.e., were palliative in nature. However, the WCJ found her
testimony not credible based on her demeanor and deportment. (F.F. No. 7.) The WCJ
also found there was no evidence that the treatments helped Claimant’s work-related
conditions or symptoms. (Id.) The WCJ noted that when Claimant missed a treatment,
there did not appear to be a worsening in her condition. (Id.) Dr. Rodriguez’s report
also indicated that some of his treatments were used to decrease Claimant’s pain. (F.F.
No. 6.) However, the WCJ rejected the opinions expressed by Dr. Rodriguez in his
report as not credible. (F.F. No. 8.)17 As noted by the Board, in Womack v. Workers’
Compensation Appeal Board (The School District of Philadelphia), 83 A.3d 1139,
1151 (Pa. Cmwlth. 2014), “the [c]ourts have . . . recognized that a lack of progress in
pain improvement is a factor that the WCJ may consider in making the factual
determination of whether palliative care is reasonable and necessary.” Thus, the WCJ
was free to determine that the palliative treatments for Claimant’s pain did not
effectively improve her symptoms. As such, we reject Claimant’s second claim of
error.
17
The WCJ is the arbitrator of fact and credibility. Hughes, 271 A.3d at 936. Markedly,
Claimant did not challenge any of the WCJ’s findings of fact or credibility to the Board or to this
Court. It is well settled that issues not raised before the Board are waived on appeal to this Court.
Marek v. Workers’ Compensation Appeal Board (Logistics Express, Inc.), 96 A.3d 434, 440 n.8 (Pa.
Cmwlth. 2014).
13
For all the above reasons, the Board’s order is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Hulda Gillot, :
Petitioner :
: No. 387 C.D. 2021
v. :
:
Visiting Nurse Association of Greater :
Philadelphia (Workers’ Compensation :
Appeal Board), :
Respondent :
ORDER
AND NOW, this 30th day of August, 2022, the order of the Workers’
Compensation Appeal Board, dated March 10, 2021, is AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge