IN THE COMMONWEALTH COURT OF PENNSYLVANIA

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1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Suzanne Frederick, : Petitioner : : No. 327 C.D v. : : Submitted: July 5, 2013 Workers Compensation Appeal : Board (Toll Brothers, Inc. and : Zurich American Insurance Co.), : Respondents : BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH FILED: August 6, 2013 Suzanne Frederick (Claimant) petitions for review of the January 23, 2013 order of the Workers Compensation Appeal Board (Board), which denied Claimant s petition for rehearing and affirmed the decision of a workers compensation judge (WCJ) denying and dismissing Claimant s petition for review of a utilization review determination. We affirm. On January 19, 2007, while Claimant was employed by Toll Brothers, Inc. (Employer), she sustained a work-related cervical strain. Employer issued a notice of temporary compensation payable. 1 In an August 12, 2008 decision denying 1 Section of the Workers Compensation Act (Act) states that unless a notice stopping compensation is filed within the ninety-day period during which temporary compensation is paid or payable, the notice of temporary compensation payable automatically converts to a notice of (Footnote continued on next page )

2 Employer s petitions for suspension and termination, the WCJ amended the description of Claimant s work-related injury to include disc herniations. (WCJ s Findings of Fact Nos. 1-2.) On April 16, 2010, Employer requested utilization review to address the reasonableness and medical necessity of all treatment, including medications, provided to Claimant by Joseph P. Valenza, M.D., beginning on March 5, 2010, and after. On June 24, 2010, Richard S. Kaplan, M.D., who is board certified in physical medicine and rehabilitation, conducted the utilization review and determined that Claimant s office visits with Dr. Valenza more than every three months, urine toxicology screens to check for abuse of medication, and use of medications prescribed by Dr. Valenza were not reasonable or necessary. (Reproduced Record (R.R.) at 27a-30a.) On July 14, 2010, Claimant filed a petition for review of the utilization review determination. (WCJ s Finding of Fact No. 6.) The WCJ conducted a hearing on September 23, At the hearing, Claimant s counsel stated that he would submit a report from Dr. Valenza, and the WCJ left the record open for that purpose. (Notes of Testimony (N.T.), 9/23/10, at 13-15, 31.) Claimant testified that, on January 19, 2007, while retrieving the mail across the street during the course of her employment with Employer, she slipped and fell because of snow and ice. Claimant stated that, because of the fall, she experienced numbness in her right hand and pain along the right side of her body. She went to an urgent care center, which instructed Claimant to see a neurologist. (continued ) compensation payable. Act of June 2, 1915, P.L. 736, added by the Act of February 8, 1972, P.L. 25, as amended, 77 P.S

3 Claimant testified that Dr. Valenza began treating her pain in July 2007 and, except for a six-month period when she had two surgeries for her injury, she has been treated by him ever since. Claimant further testified that she stopped seeing Dr. Valenza for the six-month period to see if the surgeries relieved her pain, but, when the pain persisted, she resumed her appointments. Claimant asserted that she feels 100 times better when she is on the prescribed medication than when she is not taking it. (N.T., 9/23/10, at 20-23, 28.) Specifically, Claimant testified that she visited Dr. Valenza on March 5, 2010, because she continued to experience pain from the injury. Claimant asserted that she does cervical exercises, but the pain is managed best through medication. Claimant stated that she continues to see Dr. Valenza once a month for prescriptions, including hydrocodone, Amrix, Cymbalta, and Lidoderm patches. Claimant testified that Dr. Valenza asks questions regarding the prescriptions during each appointment and orders a urine test approximately every three months to ensure that Claimant is not abusing the medication. Claimant stated that she now has to pay for the medication at her own expense. (N.T., 9/23/10, at 23-27, 29.) Employer admitted into evidence the utilization review report of Dr. Kaplan. Employer also admitted into evidence the March 18, 2010 independent medical evaluation report of Neil Kahanovitz, M.D. (N.T., 9/23/10, at 12-13, ) Dr. Kahanovitz stated in his report that Claimant s health was sufficient to resume work in a sedentary occupation. Dr. Kahanovitz further opined in his report that a reduction of Claimant s medications to non-steroidal anti-inflammatory medications and possibly localized non-narcotic patches would be optimal. (Supplemental Reproduced Record at 3b.) 3

4 The WCJ held a second hearing on October 26, Claimant s counsel submitted Dr. Valenza s office notes but had not obtained a report from Dr. Valenza. At this hearing, the parties wanted both the approval of a compromise and release agreement (C&R) and a ruling on Claimant s petition for review of the utilization review determination. However, the WCJ explained that he could not simultaneously approve the C&R and keep the matter open for a ruling on the merits of the utilization review petition. On December 8, 2010, the WCJ approved a C&R in which Employer recognized Claimant s disc herniations and remained responsible for the payment of reasonable and necessary medical expenses related to Claimant s work injuries. (WCJ s Finding of Fact No. 4.) By decision and order dated April 5, 2011, the WCJ denied and dismissed Claimant s petition for review of the utilization review determination except for office visits with Dr. Valenza every three months or as needed and nonsteroidal anti-inflammatory medication and localized non-narcotic patches. (R.R. at 21a.) Noting that Claimant only admitted into evidence the office notes of Dr. Valenza and did not admit a report from him explaining why his prescribed medications and treatment of Claimant were reasonable and necessary, the WCJ accepted the reports of Drs. Kaplan and Kahanovitz as credible. 2 Based on their reports, the WCJ determined that Employer met its burden of proving that the prescribed medications, the office visits more than every three months, and the urine toxicology screens were neither reasonable nor necessary. (WCJ s Findings of Fact Nos ) On April 11, 2011, Dr. Valenza issued a report describing why the 2 The WCJ stated that [i]f Dr. Valenza had been able to answer [why multiple pain medications were being used or indicating [sic] why there are narcotic pain relievers] and state his reasons for prescribing those medications, the result of this WCJ may well have been different. (WCJ s Finding of Fact No. 13.) 4

5 prescribed medications and his treatment of Claimant were reasonable and necessary. (R.R. at 77a-79a.) Claimant appealed to the Board, arguing that the WCJ erred in concluding that Employer met its burden of proof and requesting the Board to remand the case to the WCJ to consider Dr. Valenza s report. By opinion and order dated January 23, 2013, the Board affirmed the WCJ s order and denied Claimant s request for remand. 3 The Board concluded that Dr. Valenza s report was a direct response to the WCJ s decision and nothing more than an attempt to strengthen weak proofs already presented. (Board op. at 5-6.) By order dated April 18, 2013, this Court granted Claimant s motion to permit appeal nunc pro tunc. On appeal to this Court, 4 Claimant argues that the Board erred by denying her request to remand in order for the WCJ to consider Dr. Valenza s report. 5 We disagree. 3 There is little distinction between a petition for remand under section 419 of the Act, 77 P.S. 852, and a petition for rehearing under section 426 of the Act, 77 P.S. 871, and this Court has frequently analyzed remand issues under the same standards used in rehearing cases. Puhl v. Workers Compensation Appeal Board (Sharon Steel Corporation), 724 A.2d 997, 1001 n.4 (Pa. Cmwlth. 1999). 4 Our scope of review is limited to determining whether findings of fact are supported by substantial evidence, whether an error of law has been committed, or whether constitutional rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S Claimant also alleges in her petition for review that there was substantial evidence in the record to establish that Claimant s treatment with and medication prescribed by Dr. Valenza are reasonable and necessary. However, Claimant waived this issue by failing to include it in her statement of questions presented and address it in her brief. Pa.R.A.P. 2116(a) ( No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby. ); City of Philadelphia v. Workers Compensation Appeal Board (Ford-Tilghman), 996 A.2d 569, 572 (Pa. Cmwlth. 2010) (noting that issues not raised in the argument section of a party s brief are deemed waived). 5

6 Section 426 of the Act provides that [t]he [B]oard, upon petition of any party and upon cause shown, may grant a rehearing of any petition upon which the [B]oard has made an award or disallowance of compensation or other order or ruling, or upon which the [B]oard has sustained or reversed any action of a referee. 77 P.S The grant or denial of a rehearing is left to the discretion of the Board, and this Court will not disturb that decision absent a clear abuse of discretion. Paxos v. Workmen s Compensation Appeal Board (Frankford-Quaker Grocery), 631 A.2d 826, 831 (Pa. Cmwlth. 1993). Further, [t]he appellate courts of this Commonwealth have ruled that the authority of the Board to grant a rehearing is to be liberally administered in the interest of the claimant. UGI Corporation v. Workmen s Compensation Appeal Board (Wagner), 566 A.2d 1264, 1266 (Pa. Cmwlth. 1989). In deciding whether or not to grant a rehearing based on after-discovered evidence, the Board has broad powers to grant a rehearing when justice requires. Paxos, 631 A.2d at 831. A petition for rehearing is appropriate as a means of seeking to present after discovered [sic], non-cumulative evidence which could not have been, by the exercise of ordinary diligence, produced at the original hearing. Young v. Workmen s Compensation Appeal Board (Britt & Pirie, Inc.), 456 A.2d 1150, 1152 (Pa. Cmwlth. 1983). However, a rehearing should not be allowed simply for the purpose of strengthening weak proofs which have already been presented. Id. (internal quotation omitted). Here, Claimant argues that Dr. Valenza s report is after-discovered, noncumulative evidence that should at least be considered by the WCJ in the interest of 6

7 justice. In so doing, Claimant relies on Patterson v. Workmen s Compensation Appeal Board (Manpower/Transpersonnel Inc.), 554 A.2d 614 (Pa. Cmwlth. 1989). In Patterson, the claimant suffered a work-related injury for which he received total disability payments. The referee 6 sustained the employer s petition for termination, because the referee found credible the employer s witness s testimony that there was no evidence of physical disease or impairment. The Board affirmed the referee s decision. A month after the Board s decision, the claimant underwent an MRI, which revealed disc herniations that were confirmed by two doctors. The claimant petitioned for a rehearing based on the after-discovered evidence, which the Board denied without issuing a ruling or commenting on the after-discovered evidence. The claimant appealed to this Court. We determined that, because the MRI result was after-discovered evidence that was not available at the time of the hearing and revealed that the claimant still experienced back pain, the interests of justice required a rehearing. Id. at However, the facts of Patterson are distinguishable from those in the present case. In contrast to the after-discovered MRI in Patterson, Dr. Valenza s report is not new scientific or medical information that was not available at the time of the hearing. Instead, the report merely supports the weak proof of Dr. Valenza s office notes, which is not a permissible basis for the grant of a rehearing. Young. Moreover, the record reflects that Claimant was aware of the potential advantage of submitting a formal report and had ample opportunity to obtain one, or ask for a continuance for that purpose. Thus, the Board did not abuse its discretion by denying Claimant s petition for rehearing. 6 At the time of Patterson, WCJs were known as referees. 7

8 Accordingly, we affirm. PATRICIA A. McCULLOUGH, Judge 8

9 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Suzanne Frederick, : Petitioner : : No. 327 C.D v. : : Workers Compensation Appeal : Board (Toll Brothers, Inc. and : Zurich American Insurance Co.), : Respondents : ORDER AND NOW, this 6 th day of August, 2013, the January 23, 2013 order of the Workers Compensation Appeal Board is affirmed. PATRICIA A. McCULLOUGH, Judge

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