IN THE COMMONWEALTH COURT OF PENNSYLVANIA Robin Troutman, : Petitioner : : v. : No. 724 C.D. 2014 : Submitted: November 21, 2014 Workers Compensation : Appeal Board (Norristown Ford), : Respondent : BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE BROBSON FILED: April 10, 2015 Petitioner Robin Troutman (Claimant) petitions for review of an order of the Workers Compensation Appeal Board (Board). The Board affirmed the decision of a Workers Compensation Judge (WCJ). Pertinent to this appeal, the WCJ determined that (1) the initiation in 2005 of a second utilization review (UR) by Norristown Ford (Employer) relating to treatment provided to Claimant by a dentist did not constitute an unreasonable contest; (2) Employer was required to pay Claimant a 20% penalty for its failure to pay the medical bills of one of Claimant s treating physicians; and (3) ongoing chiropractic treatment Claimant was receiving was not reasonable or necessary. We affirm the Board s order. I. BACKGROUND On January 18, 1996, Claimant sustained injuries in the course of his employment. Employer issued a notice of compensation payable (NCP), which
initially identified his injuries as pulled neck and shoulder muscles. The parties later submitted a stipulation to a workers compensation judge, who adopted the stipulation in a November 25, 1998 decision, thereby amending Claimant s work-related injuries to include depression, masticatory pain, and myofascial pain dysfunction. The parties, the workers compensation judge, and the Board apparently broadly refer to these latter two conditions as a temporomandibular problem or TMJ. In August 2004, following a request by Employer, a UR organization evaluated the reasonableness and necessity of treatment that Terry Hurtt-Dalsey, D.M.D., provided to Claimant (2004 UR Request). (Claimant s Exhibit C-1.) Employer sought review of any and all treatment injections, adjustments and assistive devices used for treatment of cranio mandibular cervical disorder [for] the period from 3/03/04 to 3/31/04 and ongoing into the future by [Dr.] Hurtt Dalsey. (Id.) As indicated in the text of the UR determination, Dr. Hurtt-Dalsey examined Claimant during visits, evaluated Claimant, and performed trigger point anesthesia and TENS therapy once or twice per week during the period then under review. (Id.) The UR reviewer deemed Dr. Hurtt-Dalsey s treatments to be reasonable and necessary, including the following: injections, adjustments, assistive devices, exams, and evaluations. (Id.) Employer did not challenge the 2004 UR reviewer s determination. On December 22, 2005, Employer filed a second UR request regarding the treatment that Dr. Hurtt-Dalsey provided to Claimant for his TMJ condition. The purpose of the request was to determine the reasonableness and necessity of... [a]ny and all treatment for [C]laimant s TMJ condition, past, future and ongoing, including, but not limited to, office visits, trigger point 2
injections, [and] therapy (moist heat, tens unit) provided by Dr. Hurtt-Dalsey on seven specific dates in September 2005 and ongoing. (Claimant s Exhibit C-2.) The UR reviewer, James Mumford, D.M.D., described Dr. Hurtt-Dalsey s typical treatment of Claimant as follows: [Claimant] is seen anywhere from [one] to [two] times per week. Each appointment is more or less the same. At each visit [Claimant] begins by filling out a pain chart which describes [Claimant] s level of discomfort since the last visit. [Claimant] is then treated with moist heat, TENS, and nitrous oxide prior to receiving trigger point injections with lidocaine. A blood pressure reading is taken in the preauricular region on both right and left sides. The patient is prescribed liquid lidocaine which is applied each day via q-tips placed in both right and left nostrils. The patient also wears upper and lower nightguards at home as part of his treatment. (Id.) Dr. Mumford opined that the treatments were consistent with the currently accepted protocols for TMJ disorders and that Dr. Hurtt-Dalsey s treatments were reasonable and necessary. On April 5, 2006, Employer filed a UR Petition, challenging the reviewer s determination. Employer also filed a UR request regarding chiropractic treatment that Claimant was receiving from Jeffrey Ormsbee, D.C., beginning October 19, 2005. W. Brett Carothers, D.C., a chiropractor, conducted that UR review and concluded that the chiropractic treatments were not reasonable or necessary. Claimant filed a UR Petition, challenging Dr. Carothers determination. On April 17, 2006, Claimant filed a penalty petition, alleging that Employer failed to pay for Dr. Hurtt-Dalsey s medical treatment. Claimant sought a 50% penalty, statutory interest, costs, and attorney s fees for an allegedly unreasonable contest. On December 17, 2007, Claimant and Employer entered into a stipulation (the Stipulation) concerning the April 2006 penalty petition. 3
(Joint Exhibit J-1.) The Stipulation identified twelve monthly periods of treatments Dr. Hurtt-Dalsey provided to Claimant between October 2005 and August 2007, the dates upon which the bills were first submitted for payment, and the cost of those treatments. The Stipulation provided that Employer would issue a payment to Claimant in the amount of $30,885.75 on March 7, 2007, as a credit to [Employer] for any penalty assessed against Employer for failure to pay and/or timely pay the outstanding bills of [Dr. Hurtt-Dalsey] identified in the Stipulation. The WCJ denied Employer s UR Petition relating to Dr. Hurtt-Dalsey s treatment. The WCJ granted Claimant s penalty petition and imposed a 20% penalty against Employer. The WCJ denied Claimant s UR Petition regarding chiropractic treatments. Claimant appealed the WCJ s decision to the Board. The Board remanded the matter to the WCJ for the purpose of requiring the WCJ to explain her reasoning with regard to the denial of Claimant s UR Petition. The Board also directed the WCJ on remand to provide an explanation for imposing only a 20% penalty against Employer for its failure to make payments for Dr. Hurtt-Dalsey s TMJ treatments and to consider whether Employer s contest of those expenses was partially unreasonable. 1 decision: 1 With regard to this aspect of the case, the Board noted the Stipulation in its first The parties stipulated that Dr. Hurtt-Dalsey s medical bills for service from October 5, 2005 to August... 2007 and submitted between February 21, 2006 and September 24, 2007, were properly submitted, and as of December 19, 2007 had not been paid. They further stipulated that [Employer] paid Claimant $30,885.75 on March 7, 2007 to be credited for any penalty assessed for [Employer] s failure to pay or timely pay Dr. Hurtt-Dalsey s (Footnote continued on next page ) 4
On remand, the WCJ confirmed her earlier decision. With regard to Dr. Ormsbee s chiropractic treatment, the WCJ found Employer s witness more credible than Claimant s witness. With regard to her decision to award penalties of 20%, the WCJ explained that she exercised her discretion and found that the payment Employer made pursuant to the Stipulation provided for partial payment of Dr. Hurtt-Dalsey s bills. With regard to the question of whether Employer s contest of Dr. Hurtt-Dalsey s treatment was reasonable, the WCJ rejected Claimant s assertion that the 2004 UR determination, which Employer had not challenged, had res judicata or collateral estoppel effect on Employer s 2005 UR Petition, rendering Employer s 2005 UR Petition an unreasonable contest. Claimant appealed to the Board, which affirmed the WCJ s decision in its entirety. (continued ) outstanding bills; and that it paid his counsel $850.00 for any counsel fee awarded for unreasonable contest of the Penalty Petition. Based on the parties stipulation, the WCJ found a [twenty] percent penalty to be reasonable. We calculate the outstanding medical bills listed in the parties stipulation to total $218,295.00. Claimant appears to be correct that there were still outstanding medical bills dating back three years. Moreover, we calculate the $30,885.75 credit paid to Claimant on March 7, 2007, to be approximately [fourteen] percent of the total amount of the outstanding bills. We thus cannot interpret the parties stipulation as incorporating some type of an agreement for [twenty] percent penalties, since the WCJ assessed a penalty greater than the amount of the credit payment. Without an explanation, we are at a loss as to why the WCJ limited penalties to [twenty] percent, and more importantly, we cannot verify that proper discretion was exercised. (Board s November 10, 2009 decision at 12-13 (citations omitted).) 5
On appeal, 2 Claimant contends that the Board erred in affirming the WCJ s decision with regard to: (1) the WCJ s dismissal of Claimant s UR petition relating to Dr. Ormsbee s provision of chiropractic care to Claimant; (2) the WCJ s decision to limit penalties to 20%; and (3) the WCJ s determination that Employer s second challenge to the dental treatment provided by Dr. Hurtt-Dalsey constituted a reasonable contest. II. DISCUSSION A. Dr. Ormsbee s Chiropractic Treatment An employer asserting that a claimant s medical treatment is not reasonable or necessary may submit such bills for review in accordance with the UR procedures set forth in Section 306(f.1)(6) of the Workers Compensation Act (Act). 3 In the course of the UR process, the employer bears the burden throughout the proceedings to prove that the challenged treatment is not reasonable or necessary. CVA, Inc. v. Workers Comp. Appeal Bd. (Riley), 29 A.3d 1224 (Pa. Cmwlth. 2011). In seeking to demonstrate that Dr. Ormsbee s treatment is not reasonable or necessary for Claimant s work-related injuries, Employer submitted the UR determination of Dr. Carothers. Dr. Carothers was asked to review all chiropractic treatment Dr. Ormsbee provided, including office visits, adjustments, hot packs, traction, release, and aqua therapy, for visits that occurred between August 24, 2005, and November 2, 2005, and ongoing treatments. (Employer s 2 Our review in this appeal is limited to considering whether all necessary factual findings are supported by substantial evidence, and whether any error of law or violation of constitutional rights was committed. 2 Pa. C.S. 704. 3 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. 531(6). 6
Exhibit D-2.) Dr. Carothers reviewed a provider statement of Dr. Ormsbee, Dr. Ormsbee s notes from the dates included in the report, MRIs dated in 1996 and 2005, records from Sylvan Orens, D.M.D., and a statement signed by Claimant. (Id.) Additionally, Dr. Carothers spoke with Dr. Ormsbee on the telephone about his treatment of Claimant. Dr. Carothers noted that Dr. Ormsbee s treatments of Claimant after November 2, 2005, which were approximately weekly visits, included chiropractic manipulative therapy, (CMT) and/or spinal adjustments, hot packs, lumbar traction, aquamassage (warm water whirlpool type hydrotherapy), neuromuscular re-education, myofascial release and stretching techniques. (Id.) According to Dr. Carothers, Dr. Ormsbee s records document the symptoms Claimant related to him. Dr. Carothers noted, however, that neither the records, nor Dr. Ormsbee himself in a telephone conversation, identified a diagnosis of Claimant s injuries. Dr. Ormsbee told Dr. Carothers that Claimant s condition is chronic, complicated insofar as it causes a neck torticollis resulting in [Claimant] s head approximating his shoulder, and [is] relieved with manipulative therapy. (Id.) Dr. Carothers noted that the MRIs revealed no issues relating to the spine and no significant central canal stenosis or convincing evidence of atrophy of the spinal cord. (Id.) Dr. Carothers opined that [s]ince it is not typical to continue passive treatments over the long term for benign complaints in the absence of documented appreciable benefit the treatment... is not supported as reasonable and necessary. (Id. (emphasis in original).) With regard to the palliative effect of Dr. Ormsbee s treatment, Dr. Carothers also quoted Claimant s statements that Dr. Ormsbee s treatment provides relief from pain and stiffness. (Id.) Dr. Carothers opined, however, that 7
Dr. Ormsbee had been providing the above treatment without documented appreciable benefit. (Id.) Dr. Carothers opined that the appropriate treatment for the circumstances presented including [Claimant] s complaints and the conditions listed calls for the initiation of exercise and functional restoration as early in the treatment plan as possible, with a gradual concurrent reduction in the use of and elimination of passive treatments as the treatment plan progresses over six to twelve months that expired prior to the period under review. (Id.) Dr. Carothers opined that Dr. Ormsbee s treatment provided only short-term relief and no progressive relief of Claimant s pain and that the treatment was passive and not reasonable because the treatment provided no documented appreciable benefit... continuing ongoing... into the future as needed. (Id.) Thus, with regard to the palliative effect of Dr. Ormsbee s treatment, Dr. Carothers opined that the lack of progressive pain improvement warranted a different approach to Claimant s pain, including a home exercise program. In response, Claimant testified that Dr. Ormsbee s treatments relieved some pressure on his back. (Notes of Testimony (N.T.) July 18, 2007, at 15.) Claimant also offered the deposition testimony of Nicholas Diamond, D.O. Dr. Diamond is a board-certified general practitioner, whose practice is concentrated on pain management. Dr. Diamond began treating Claimant in November 1997. (Id. at 11.) Dr. Diamond opined that when he first examined Claimant, he diagnosed Claimant s work injuries to include chronic myofascial pain syndrome with depression, TMJ dysfunction, cervical spine sprain/strain, and right shoulder girdle sprain/strain. (Id. at 15-16.) Dr. Diamond reviewed Dr. Ormsbee s treatment of Claimant. (Id. at 42-43.) Dr. Diamond opined that Dr. Ormsbee s treatments addressed the objective of maintaining and increasing 8
Claimant s range of motion and the incidents when Claimant s condition became exacerbated. (Id.) Dr. Diamond opined that the treatments help Claimant maintain a range of motion and help him to increase his daily activities. (Id.) During the course of Dr. Diamond s testimony, Claimant s counsel submitted into evidence a letter Dr. Ormsbee wrote, indicating that his treatment of Claimant s post traumatic cervical torticollis (cervical dystonia), makes it less difficult for him to move about freely and that the treatment for some time has been palliative in nature. (Notes of Testimony Exhibit Diamond-6.) Additionally, Dr. Ormbsee wrote: (Id.) [C]laimant s t]reatment... has been focused on increasing his limited motion and decreasing his pain through mild chiropractic manipulation and modalities such as heat, ultrasound and electric muscle stimulation and massage. [Claimant] s care at this office has been to provide symptomatic relief. This enables him to function at a somewhat higher level for a period of time. Claimant argues that the WCJ erred in concluding that Dr. Ormsbee s treatments are no longer reasonable or necessary, because Dr. Ormsbee s treatments provide palliative relief. A WCJ may find palliative treatment to be reasonable and necessary, even when such treatment only alleviates a claimant s symptoms, rather than cures or permanently improves a condition related to a work-related injury. Jackson v. Workers Comp. Appeal Bd. (Boeing), 825 A.2d 766, 771 (Pa. Cmwlth. 2003). The Courts have also opined, however, that although it is true that palliative treatment may be reasonable and necessary under the Act,... 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. Womack v. 9
Workers Comp. Appeal Bd. (The School District of Philadelphia), 83 A.3d 1139, 1150 (Pa. Cmwlth.), appeal denied, 94 A.3d 1011 (Pa. 2014). As indicated above, the WCJ found Dr. Carothers opinion more credible than the opinion of Claimant s expert, Dr. Diamond, and, thus, she accorded greater weight to Dr. Carothers opinion. Although Claimant s experts may have opined that Claimant received some relief from Dr. Ormsbee s treatments, the WCJ, as fact finder, has the sole authority to make credibility determinations, resolve conflicts in the medical evidence, and decide what weight to assign the evidence. Greenwich Collieries v. Workmen s Comp. Appeal Bd. (Buck), 664 A.2d 703, 706 (Pa. Cmwlth. 1995). The findings of the WCJ are conclusive on appeal as long as they are supported by substantial evidence. Id. Moreover, Section 422(a) [of the Act] does not permit a party to challenge or second-guess the WCJ s reasons for credibility determinations. Unless made arbitrarily or capriciously, a WCJ s credibility determinations will be upheld on appeal. Dorsey v. Workers Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191, 195 (Pa. Cmwlth. 2006), appeal denied, 916 A.2d 635 (Pa. 2007) (citation omitted). Dr. Carothers opinion regarding the lack of progression of pain improvement was sufficient to support the WCJ s findings. Accordingly, we conclude that substantial evidence supports the WCJ s determination that Dr. Ormsbee s treatment is not reasonable or necessary. B. Twenty-Percent Penalty Assessment In her initial decision, the WCJ determined that Employer violated the Act by failing to pay for treatment rendered to Claimant by Dr. Hurtt-Dalsey after such treatment was found to be reasonable and necessary by the Utilization Review. (WCJ August 27, 2008 decision, F.F. no. 26.) Based upon her finding of a violation 10
for failure to pay medical bills, the WCJ imposed a penalty of 20% under Section 435 of the Act, 4 which provides: (d) The department, the board, or any court which may hear any proceedings brought under this act shall have the power to impose penalties as provided herein for violations of the provisions of this act or such rules and regulations or rules of procedure: (i) Employer and insurers may be penalized a sum not exceeding ten per centum of the amount awarded and interest accrued and payable: Provided, however, That such penalty may be increased to fifty per centum in cases of unreasonable or excessive delays. Thus, when an employer or insurer fails to pay for a claimant s medical treatments but does not engage in unreasonable or excessive delays, a WCJ may, in his or her discretion, impose penalties up to 10% of the amount awarded. If, however, a WCJ determines that an employer or insurer acted unreasonably or excessively delayed payment to claimant, a WCJ may, in his or her discretion, impose penalties greater than 10% and up to 50%. In this matter, the WCJ apparently agreed with Claimant that Employer acted unreasonably in failing to pay Claimant s medical bills and exercised her discretion to award a penalty greater than 10%, i.e., 20%. Claimant argues that the WCJ should have exercised her discretion differently and awarded penalties of 50%. The imposition of a penalty and the amount of the penalty to be imposed are left to the sound discretion of the WCJ; therefore, the WCJ s decision to impose a penalty will not be overturned on appeal absent an abuse of discretion. 4 Added by the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. 991(d)(i). 11
McLaughlin v. Workers Comp. Appeal Bd. (St. Francis Country House), 808 A.2d 285, 288 (Pa. Cmwlth. 2002), appeal denied, 828 A.2d 351 (Pa. 2003). An abuse of discretion occurs where the WCJ s judgment is manifestly unreasonable, where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will. Allegis Group v. Workers Comp. Appeal Bd. (Coughenaur), 7 A.3d 325, 327 (Pa. Cmwlth. 2010). Claimant asserts two primary bases for arguing that the WCJ s award of penalties of only 20% constitutes an abuse of discretion: (1) that the delay of two and one-half years was unreasonable and egregious; and (2) the WCJ s factual determinations reflect an erroneous understanding of the history of Employer s non-payment and payment of Dr. Hurtt-Dalsey s medical bills that were deemed reasonable and necessary. Claimant does not allege that the WCJ acted with partiality, prejudice, or ill will. Rather, Claimant suggests that the WCJ s award is manifestly unreasonable or the result of an erroneous application of the law. With regard to Claimant s first complaint that the WCJ should have imposed a greater penalty due to the length of the delay, we note that the WCJ has the sole discretion to impose a greater penalty than 10% in instances where an employer acts unreasonably and with undue delay, and the WCJ did just that, by imposing penalties of 20%. We are not in a position to question the WCJ s exercise of discretion in that regard. The only other basis for concluding that the WCJ abused her discretion would be if the WCJ s decision reflected an improper implementation of the law. Here, the WCJ properly implemented Section 435(d)(i) of the Act by increasing the penalties from 10% to 20% in apparent reflection of the unreasonable delay exhibited 12
by Employer. Claimant contends, however, that the WCJ s pertinent factual finding is erroneous. That finding provides: In awarding a twenty percent penalty, this Judge found it significant that partial payment had been made by [Employer] on the bills pursuant to the Stipulation of the parties. There was no evidence presented by Claimant that the non-payment of the bills in any way impeded his ability to continue to treat with Dr. Hurtt[-]Dalsey. A Workers Compensation Judge considering a claim for penalties has sole discretion in deciding whether or not to award penalties for a violation of the Act, and in this case this Judge found that a twenty percent (20%) penalty was proper. (F.F. no. 6.) Claimant argues that this factual finding is erroneous based upon the fact that the Stipulation indicates that the payment was to address potential penalties, not for the purpose of paying overdue bills. Claimant contends that the WCJ should not have made a discretionary award based on this erroneous finding. Claimant is correct that, at the time the parties filed the Stipulation, Employer had not paid the bills and the amount Employer paid pursuant to the Stipulation was only designated to be a credit toward any potential penalties. The Board considered this argument and concluded that although the payment was associated with potential future penalties that might be imposed, the fact remains that [Employer] made this payment regardless of whether it is characterized as being toward medical expenses or penalties. (Board Decision April 1, 2014 at 10.) We agree with the Board s evaluation and conclusion. Regardless of whether Employer paid approximately $30,000 for unpaid bills or for an anticipated future penalty assessment, the WCJ was familiar with the fact that Employer had paid some amount as an admission that it had violated the Act and Claimant was not prejudiced by the actions that gave rise to the ultimate assessment of the 20% penalty. 13
We do not perceive this as a misapplication of the pertinent law, and, thus, this factor does not provide a basis upon which to conclude that the WCJ abused her discretion. We agree with the Board that the WCJ did not abuse her discretion in awarding a 20% penalty rather than a 50% penalty. C. Assessment for Counsel Fees for Unreasonable Contest Claimant argues that the WCJ erred in failing to assess counsel fees against Employer for allegedly pressing an unreasonable contest with regard to Employer s second UR request in 2005 concerning Dr. Hurtt-Dalsey s treatment of Claimant. Claimant poses two grounds for asserting that the WCJ erred in concluding that Employer s contest was reasonable: (1) because Dr. Hurtt-Dalsey s treatment is palliative, the WCJ could not have granted Employer s UR petition; and (2) the resolution of an earlier unchallenged 2004 UR regarding Dr. Hurtt-Dalsey rendered the earlier determination res judicata with regard to this 2005 UR of Dr. Hurtt-Dalsey s treatments, and thus, this proceeding was not reasonable per se. Section 440 of the Act 5 provides: In any contested case... the [claimant]... in whose favor the matter at issue has been finally determined... shall be awarded... a reasonable sum for costs incurred for attorney s fee... [p]rovided[ t]hat cost for attorney fees may be excluded when a reasonable basis for the contest has been established by the employer. On remand, the WCJ made the following finding regarding the reasonableness of Employer s contest of Dr. Hurtt-Dalsey s treatment: 5 Added by the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. 996. 14
[T]his Judge has considered Claimant s argument that an unreasonable contest counsel fee should have been awarded, based on a prior un-appealed Utilization Review Determination, which found such treatment to be reasonable and necessary. This Judge rejects Claimant s argument. The dates of treatment in dispute in the second request were not identical to that of the first request. This Judge is unaware of case law which states that once a Utilization Review request has been made pertaining to a certain provider and certain treatment, a second Utilization Review request may never be made. Since the Utilization Review process is the exclusive means of determining the reasonableness and necess[ity] of medical treatment, [Employer] s subsequent Utilization Review request was permissible under the Act and case law. (F.F. no. 7.) Thus, the WCJ reasoned that because the dates of service at issue in the un-appealed 2004 UR determination and the 2005 UR request differed, Employer was not precluded from obtaining a UR determination on the more recent treatment. On appeal to the Board, Claimant asserted that the WCJ erred in concluding that the contest was reasonable, because the doctrines of res judicata and/or collateral estoppel precluded such repetitive challenges as a matter of law. The Board concluded that although the passage of time alone is an insufficient basis to not apply those preclusive doctrines, the WCJ did not err in refusing to apply res judicata or collateral estoppel based upon its view that the WCJ determined both (1) differences in the dates of treatment, and (2) differences in the treatments occurring in the different time periods. (Board decision at 14.) We perceive no indication in the WCJ s factual finding that she drew any distinction between the treatment at issue in the first and second UR review. In fact, in the WCJ s earlier adjudication, she summarized Dr. Hurtt-Dalsey s testimony in the following pertinent aspects: A Utilization Review of her treatment performed in 2004 found her treatment to be reasonable and necessary. She is 15
in agreement with the [UR] performed by Dr. Mumford in February 2006. Since September 2005, she has continued with the same treatment plan that had been done previously. (WCJ Decision August 27, 2008, F.F. no. 13(a).) It appears to this Court that the sole reason the WCJ elected not to apply res judicata was because the treatment periods were different, and not because the treatments were different. The Board, however, reviewed the testimony of one of Employer s experts, Guy Fried, M.D., observing that Dr. Fried s primary concern was that continuation of the injection treatment Dr. Hurtt-Dalsey provided over time would result in more harm than good. (Board Opinion at 12.) Thus, although the Board was incorrect in its characterization of the WCJ s factual finding, the Board was correct to note that Dr. Fried s testimony indicated that, even if the treatment has some palliative benefits, the ultimate outcome of the treatment could be detrimental in the long run. (Fried March 5, 2007 deposition at 18-19.) In C.D.G., Inc. v. Workers Compensation Appeal Board (McAllister), 702 A.2d 873 (Pa. Cmwlth. 1997), an employer filed a review petition under former provisions of the Act. While that petition was pending before a WCJ, the General Assembly adopted the present UR system and the employer sought UR review for the same treatment. The only distinction between the initial review petition and the UR petition was that the employer s review petition sought to discontinue the physical therapy at issue beginning in November 1992, whereas in its UR petition, the employer sought to discontinue payments for the same treatment beginning in August 1993. Ultimately, the WCJ who presided over the review petition determined that the course of treatment i.e., therapy sessions two or three times per week were not reasonable or necessary, and the claimant did not appeal that decision. In the UR proceeding, the only difference factually was that the claimant s therapist provided 16
testimony that his treatments were only necessary three or four times per year. The employer argued that res judicata precluded the WCJ in the UR proceeding from arriving at a different conclusion than that arising in the review petition proceedings. We concluded that the passage of time alone could make no difference with regard to the application of res judicata. Rather, in such a situation, the claimant was required to show that a change in his condition had arisen such that the previous adjudication should not preclude reconsideration of the reasonableness and necessity of the treatment. In a more recent decision, Gary v. Workers Compensation Appeal Board (Philadelphia School District), 18 A.3d 1282 (Pa. Cmwlth.), appeal denied, 30 A.3d 489 (Pa. 2011), however, we opined that the lapse of a considerable amount of time coupled with credited evidence of a change in a claimant s condition distinguished the case from C.D.G., such that res judicata did not apply. Gary, 18 A.3d at 1287. We reject Claimant s reliance on the claim that the treatment is palliative. As discussed above, the palliative nature of a treatment may, but does not necessarily always, support a WCJ s determination that such treatments are reasonable and necessary. Thus, the resolution of this issue comes down to Claimant s assertion that the contest was unreasonable by virtue of the alleged res judicata or collateral estoppel effect of the unappealed 2004 UR determination. In this case, although the difference in time is more akin to that at issue in C.D.G., Employer submitted evidence not of a change in condition, but rather of the potential that the treatment would at some point in the future cause significant harm rather than simply provide palliative care. Dr. Fried testified that he did not believe that the frequency of Dr. Hurtt-Dalsey s treatments was appropriate and that the negative side effects of such treatments over time could cause more problems than it solves relative to the palliative purpose of the treatments. Thus, given the fact that 17
the treatments may ultimately produce such negative effects, it was not unreasonable for Employer to have questioned the ongoing utility of the treatments, as Employer would ultimately be liable for any potential negative consequences that could occur. While this testimony ultimately did not show, at least to the satisfaction of the WCJ, that such harm is occurring in the present, the testimony indicates that the treatment at issue, may, at some indefinite point in time, become not only unreasonable and unnecessary, but also become an aggravating and harmful element in Claimant s treatment. It seems reasonable to reject a hard and fast rule in a situation such as this, where an employer offers evidence that a treatment may have a finite period of anticipated efficacy. An employer should have an opportunity under the Act to seek review of such treatment. Because, as the Board noted, Dr. Fried s testimony suggested that Claimant was at risk of jeopardizing his condition by virtue of the continued treatment, the contest itself (if not the outcome for Employer) was reasonable. Accordingly, we find no error in the WCJ s conclusions, and we affirm the Board s order. P. KEVIN BROBSON, Judge 18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Robin Troutman, : Petitioner : : v. : No. 724 C.D. 2014 : Workers Compensation : Appeal Board (Norristown Ford), : Respondent : O R D E R AND NOW, this 10th day of April, 2015, the order of the Workers Compensation Appeal Board is AFFIRMED. P. KEVIN BROBSON, Judge