IN THE COMMONWEALTH COURT OF PENNSYLVANIA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Shenandoah Valley School District and School Claims Services, LLC, Petitioners v. No. 1726 C.D. 2013 Submitted February 7, 2014 Workers Compensation Appeal Board (Sacco), Respondent BEFORE HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE COLINS FILED June 18, 2014 Shenandoah Valley School District and School Claims Services, LLC, (collectively Employer) filed a petition for review asking this Court to vacate the order of the Workers Compensation Appeal Board (Board) that affirmed as modified the decision and order of the Workers Compensation Judge (WCJ), which concluded that Marie Sacco (Sacco) had established a causal relationship between her work injuries and her need for home modifications, a stair lift, and

aqua therapy pursuant to the Pennsylvania Workers Compensation Act (Act). 1 Employer argues that the WCJ lacked jurisdiction to decide the issues raised in Sacco s Petition to Review Compensation Benefits and Medical Treatment because a Utilization Review (UR) to determine whether Sacco s medical needs were reasonable and necessary had yet to take place. Employer also argues that the WCJ s conclusion that Sacco established a causal connection between her work injury and medical needs was not supported by substantial evidence. For the reasons that follow, we affirm the order of the Board. 2 On December 18, 2003, during the course of her employment as an elementary school teacher, Sacco slipped on untreated ice and had a fall that caused traumatic injury. (WCJ Decision and Order (WCJ Kutz Decision), Finding of Fact (F.F.) 1a, Reproduced Record (R.R.) at 217a.) On November 19, 2004, Employer issued a Medical Only Notice of Compensation Payable (NCP) accepting Sacco s injury as work-related and describing her injury as a lower back or lumbar sprain or strain. (WCJ Kutz Decision, Procedural History, R.R. at 215a.) In an April 26, 2006 decision and order issued by WCJ Kutz, the description of Sacco s injury was corrected to include aggravation of a demyelinating disease, probably multiple sclerosis, and traumatic cervical myelopathy. (WCJ Kutz Decision, F.F. 5(c), R.R. at 224a.) In addition to other findings and conclusions, WCJ Kutz concluded that Employer shall be directed to pay Claimant s causally related medical expenses in accordance with the medical cost containment 1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. 1-1041.4, 2501-2708. 2 Our scope of review is limited to determining whether constitutional rights were violated, an error of law was committed, or whether the WCJ s necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. 704; Dworek v. W.C.A.B. (Ragnar Benson, Inc. & National Union Fire Insurance Co.), 646 A.2d 713, 715 n.3 (Pa. Cmwlth. 1994). 2

provisions of the Act for these injuries. (WCJ Kutz Decision, Conclusions of Law (C.L.) 2, R.R. at 229a.) On May 28, 2006, WCJ Kutz issued an amended decision and order specifically stating what had been implied in his April 26, 2006 decision and order given the credibility findings and Analysis, [Employer] did not meet its burden of proof for its Joinder Petition or its Termination Petition. Accordingly, these Petitions shall be dismissed. (WCJ Kutz Amended Decision and Order, C.L. 3, R.R. at 235a) (emphasis in original.) On September 25, 2006, Employer filed a second Petition to Terminate Compensation Benefits and to Review Compensation Benefits. (WCJ Caravaggio Decision and Order (WCJ Caravaggio Decision), R.R. at 239a.) WCJ Caravaggio issued a January 15, 2008 decision and order that, inter alia, denied and dismissed Employer s Petition to Terminate based upon the WCJ s finding that Sacco had not fully recovered from her work injury and the WCJ s conclusion that Sacco s treatment for multiple sclerosis is causally related to her work injury. (WCJ Caravaggio Decision, F.F. 20-21, C.L. 8-9, R.R. at 244a-245a.) Sacco initiated the present matter on March 8, 2010 by filing a Petition to Review Medical Treatment and Compensation Benefits. (LIBC-378 Petition, R.R. at 1a-2a.) The matter was assigned to WCJ Rapkin and an initial hearing was held on April 8, 2010, at which Sacco presented four issues for review (i) home modifications; (ii) chiropractic care; (iii) delivery of Copacson; and (iv) aqua therapy. (WCJ Hearing April 8, 2010, at 7-8, 18, R.R. at 14a-15a, 25a.) A second hearing was held on March 1, 2011, at which Sacco advised the WCJ that two issues remained, a dispute over recommended home modifications and aqua therapy, and that she would like to orally amend the Petition to include a request to add a stair glider to her home. (WCJ Hearing March 1, 2011, at 9-10, 3

14, R.R. at 49a-50a, 54a.) Employer did not object to Sacco s amendment; however, Employer sought to amend its answer to Sacco s Petition in order to object to the entire proceeding on the basis of jurisdiction. (Id. at 14, R.R. at 54a.) Additional hearings were held on April 14, 2011 and October 12, 2011 3 before WCJ Rapkin. (WCJ Hearings April 1, 2011, October 12, 2011, R.R. at 102a, 131a.) In a decision and order issued on November 30, 2011, WCJ Rapkin found that Dr. Sirken had completed a UR on December 27, 2010, but that the report issued by Dr. Sirken did not address the home modifications recommended by Dr. Hoegerl, Sacco s treating neurologist, because the recommendation had not been provided to Dr. Sirken along with Sacco s other medical records. (WCJ Rapkin Decision and Order (WCJ Rapkin Decision), Discussion C(1)-(5).) WCJ Rapkin concluded that Employer had not yet litigated the issue of whether the home modifications sought by Sacco were reasonable and necessary, and that he lacked jurisdiction over the issue of whether medical treatment is reasonable and necessary, which must be addressed via UR. (WCJ Rapkin Decision, Procedural Background, 3, Discussion, 6, C.L. 2.) WCJ Rapkin then proceeded to address the question of whether Sacco had met her burden of demonstrating that home modifications, a stair lift, and aqua therapy were directly and causally related to her work injuries and concluded that she had shown that the recommended medical treatment was causally related to her work injury. (WCJ Rapkin Decision, C.L. 3 The October 12, 2011 hearing transcript deals largely with the Petition to Terminate filed by Employer subsequent to the Petition filed by Sacco and is relevant here only insofar as the parties confirmed at that hearing that the record at issue here was closed. (WCJ Hearing October 12, 2011 at 4, R.R. at 134a.) 4

1.) Employer appealed WCJ Rapkin s decision and order to the Board raising substantially the same issues it now raises before this Court. The Board affirmed WCJ Rapkin s decision and order, modifying it in part. (Board Decision and Order, at 2.) Although described and discussed accurately throughout the remainder of WCJ Rapkin s decision, finding of fact seven (7) inaccurately describes Sacco s work injury as traumatic cervical myelopathy and aggravation of a demyelinating disease, and multiple sclerosis. (WCJ Rapkin Decision, F.F. 7 (emphasis added); WCJ Kutz Decision, F.F. 5(c), R.R. at 224a; Board Decision, at 2.) In support of this finding, WCJ Rapkin cites to the correct description contained in WCJ Kutz s decision, which differs only insomuch as there is no and, a small word with particular importance here. (See WCJ Kutz Decision, F.F. 5(c) ( traumatic cervical myelopathy and aggravation of a demyelinating disease, multiple sclerosis. ).) The Board modified WCJ Rapkin s decision solely to delete the and. (Board Decision, at 2.) The Board also rejected Employer s jurisdictional argument based on this Court s decision in Bloom v. Workmen s Compensation Appeal Board (Keystone Pretzel Bakery), 677 A.2d 1314 (Pa. Cmwlth.), appeal denied, 684 A.2d 558 (Pa. 1996). Employer appealed the Board s decision to this Court. 4 In Bloom this Court recognized that following the 1993 amendments to the Act, disputes relating to the reasonableness or necessity of treatment provided by a health care provider were to be raised by a request for UR and to be 4 The reproduced record submitted to this Court by Appellant contains a September 27, 2012 decision and order issued by WCJ Rapkin. (R.R. at 247a-259a.) This decision and order is not a part of the certified record and has no bearing on the matter currently before this Court. Employer has, however, filed a petition for review with this Court, from the Board s March 5, 2014 order affirming WCJ Rapkin s September 27, 2012 decision and order, which is docketed at 547 C.D. 2014. 5

reviewed by a utilization review organization (URO), and that disputes relating to the causal relationship between the treatment under review and the employee s work-related injury were to be raised by a petition to review medical treatment and reviewed by a WCJ. 677 A.2d at 1318; see also Section 306(f.1) of the Act, 77 Pa. C.S. 531. This Court also recognized that a natural outgrowth of these parallel procedures was that two separate cases arising from the same set of facts and circumstances may move through Pennsylvania s workers compensation system and reach the WCJ and this Court at separate times. Id. Employer argues that Bloom is distinguishable from the situation here because Bloom addressed the proper procedure when two separate cases are proceeding through the workers compensation system, a request for UR and a petition to review medical treatment and terminate benefits, whereas here only Sacco s Petition to Review Medical Treatment is at issue. Employer contends that although the Act allows a request for UR and a petition to review medical treatment to be filed simultaneously, in instances where only a petition to review medical treatment has been filed, the petition cannot be decided unless and until a UR has been requested. In support of its argument, Employer relies upon Warminster Fiberglass v. Workers Compensation Appeal Board (Jorge), 708 A.2d 517 (Pa. Cmwlth. 1998), which stated that medical bills can only be challenged through a timely UR request, and once one is filed, the reasonableness and necessity of those medical bills can only be determined by the URO, and the WCJ or the Board have no jurisdiction over the bills until the UR is decided. Id. at 521. Employer s reliance on Warminster is misplaced. Warminster did not preclude a WCJ s review of whether a causal connection existed between the work-related injury and 6

the medical treatment sought; instead, Warminster reiterated that a WCJ may not order payment of medical bills that are subject to an unfinished UR and may only order payment of those bills that have been found to be reasonable and necessary or have not been challenged. Id.; see also Hoffmaster v. Workers Compensation Appeal Board (Senco Products, Inc.), 721 A.2d 1152, 1155 (Pa. Cmwlth. 1998). Employer offers no support in the Act, the implementing regulations, or Pennsylvania precedent for its argument that the issue of causation cannot be decided prior to a UR, including in instances where an employer has not filed a UR request. To the contrary, our cases and the text of the Act make clear that the issue of causation and the issue of reasonableness and necessity are two separate issues that are determined via two separate, parallel proceedings that are not intended to cross-pollinate. The Act provides procedures that account for the differing circumstances where an employer moves to show that causation has ceased by filing a termination petition and a claimant moves to show continued causation by filing a claim or review petition. Where it is the employer that initiates the proceedings before the WCJ, it is the employer that must carry the evidentiary burden; where it is the claimant, it is the claimant who must present sufficient evidence to demonstrate causation. Muchnok v. Workers Compensation Appeal Board (Consolidated Coal Co.), 723 A.2d 257, 259 (Pa. Cmwlth. 1998); St. Mary s Home of Erie v. Workmens Compensation Appeal Board (Stadtmiller), 683 A.2d 1266, 1268 (Pa. Cmwlth. 1996). The Act also provides the WCJ with broad discretion to take appropriate action based on the evidence presented in support of a petition, regardless of the form of the petition itself, including modification, 7

reinstatement, suspension, and termination. Section 413(a) of the Act, 77 P.S. 771, 772, and 773. Here, Sacco sought to establish that a causal relationship existed between her work injuries and her need for home modifications, a stair lift, and aqua therapy. Sacco did not seek a determination from the WCJ that the home modifications, stair lift, and aqua therapy were reasonable and necessary. (See, e.g., Petition to Review Medical Treatment, R.R. at 1a.) The WCJ did not make a determination that the home modifications, stair lift, and aqua therapy were reasonable and necessary. (WCJ Rapkin Decision, C.L. 2.) The WCJ clearly concluded that he lacked jurisdiction over whether the treatment was reasonable and necessary, and that, regardless of his conclusion that a causal connection existed, Sacco s medical bills were subject to UR review. (WCJ Rapkin Decision, Discussion 6, C.L. 2.) Although Employer sought throughout the proceedings to characterize Sacco s request as one for a determination from the WCJ that the home modifications, stair lift, and aqua therapy were reasonable and necessary, Employer s characterization is not determinative of the issues raised in Sacco s Petition or those before the WCJ. (See WCJ Hearing March 1, 2011 at 14-15, R.R. at 54a-55a. 5 ) Next, Employer argues that WCJ Rapkin s conclusion that a causal connection exists between Sacco s work-related injury and the medical treatment sought was not supported by substantial evidence. Substantial evidence is such 5 For example, Employer s Counsel stated This is an amendment to include lack of jurisdiction. And this is the reason. The issue before Your Honor with respect to the Review Petition involving the renovations and now the stair glider is whether the Employer should be responsible for these home modifications. The real question, though, is whether the home modifications are reasonable and necessary to accommodate the Claimant s work injury. (WCJ Hearing March 1, 2011 at 14-15, R.R. at 54a-55a.) 8

relevant evidence as a reasonable person might accept as adequate to support a conclusion. Joy Global, Inc. v. Workers Compensation Appeal Board (Hogue), 876 A.2d 1098, 1103 (Pa. Cmwlth. 2005). In reviewing whether a WCJ s factual findings are supported by substantial evidence, the evidence must be viewed in the light most favorable to the party that prevailed before the WCJ. Id.; Hoffmaster, 721 A.2d at 1155. Where both parties presented evidence before the WCJ, it is immaterial that there is evidence in the record that supports a factual finding contrary to that made by the WCJ; rather, the critical inquiry is whether there is evidence to support the WCJ s factual findings. Lehigh County Vo-Tech School v. Workmens Compensation Appeal Board (Wolfe), 652 A.2d 797, 800 (Pa. 1995); Joy Global, 876 A.2d at 1103. The record here contains such evidence. The WCJ credited the testimony of Sacco and her husband concerning Sacco s difficulties ambulating and bathing within their home unassisted and without incurring injury, as well as the impact the injury had on Sacco s ability to carry out daily life activities. (WCJ Rapkin Decision, F.F. 10, 15-18, 20-22.) The WCJ credited Sacco s testimony concerning the benefits of aqua therapy for her mobility, joints and spine. (Id. F.F. 14.) The WCJ made findings of fact based on letters accepted into evidence from Francis Kane, D.O., Carl R. Hoegerl, D.O., Anthony C. Falvello, D.O., Linda Veglia, physical therapist, and Cheryl Bolesta, occupational therapist, recommending home modifications. (Id. F.F. 23-26.) The WCJ also reviewed testimony from Dr. Prebola, Employer s expert witness, who opined that because multiple sclerosis is a progressive demyelinating disease, Sacco will continue to have neurologic dysfunction, but that she also suffered from a multitude of age-related medical conditions. (Id. F.F. 27.) In 9

finding of fact twenty-eight (28), the WCJ summarized and rejected the following evidence from Dr. Prebola Dr. Prebola believed that chiropractic treatment and modalities including physical therapy may be reasonable to treat non workrelated medical conditions (but not the legally accepted medical conditions.) Dr. Prebola did not believe that Claimant required architectural home modifications for the legally accepted work-related medical diagnoses. By the very nature of multiple sclerosis, she will have progression. However, it should be noted that her progression of her disease process is clearly related to the disease process itself and not the one-time aggravation.[] From a purely medical standpoint, Claimant can also expect to have further impairment based on her non-work-related medical conditions, which will contribute to her overall impairment.[ ] (Id. F.F. 27; see also IME Dr. Prebola, R.R. at 204a.) Employer argues that much of the evidence relied upon by the WCJ for his conclusion that Sacco demonstrated a causal connection between her workrelated injury and the recommended medical treatment is insufficient because the medical providers refer to Sacco s multiple sclerosis and, in some instances, to her previous injury but do not specifically identify the date of her injury or the judicially accepted aggravation of multiple sclerosis as distinct from multiple sclerosis. The record as a whole demonstrates that Employer s argument is specious. The recommendations from Sacco s medical providers were given in the context of a workers compensation proceeding. Some of the providers had already submitted documentation for a UR. (See, e.g., UR Determination, January 1, 2011, R.R. at 174a-181a.) Dr. Francis Kane is Sacco s long-term family physician. (Id.) Dr. Hoergel took over as Sacco s treating neurologist after the retirement of his partner, Dr. Jeffreys, who had been Sacco s neurologist since 10

shortly after her injury. (WCJ Hearing March 1, 2011 25-26, 39, R.R. at 65a-66a, 79a.) Finally, Dr. Setlock was at the school the day of Sacco s injury, was originally assigned to Sacco as her workers compensation physician, and is the physician who prescribed aqua therapy. (Id at 25, R.R. at 65a; Aqua Therapy Prescription at R.R. 167a.) There is simply no question on this record that Drs. Kane, Hoergel, and Setlock were aware of and speaking to Sacco s judicially accepted injury. Employer also argues that the focus in the letters from Dr. Falvello, Linda Veglia, and Cheryl Bolesta on the injury to Sacco s shoulder and the need for modifications to prevent further injury undermines the value of this evidence because the NCP has never been amended to include Sacco s shoulder injury. This argument is also unavailing. The WCJ clearly noted that Sacco was not offering evidence of her shoulder injury in order to amend the NCP, but rather to demonstrate that the home modifications were related to the aggravation of her multiple sclerosis. (WCJ Rapkin Decision, F.F. 17.) Again, Employer s argument asks that the evidence from Dr. Falvello, Linda Veglia, and Cheryl Bolesta be read in isolation as opposed to being read as part of the record as a whole. See Section 422(a) of the Act, 77 P.S. 834. In workers compensation matters, it is not the province of an appellate court to reweigh the evidence; the WCJ is the ultimate finder of fact and the exclusive arbiter of credibility and evidentiary weight. Daniels v. Workers Compensation Appeal Board (Tristate Transport), 828 A.2d 1043, 1052 (Pa. 2003). The WCJ is free to accept or reject, in whole or in part, the testimony of any witness, lay or medical. A & J Builders, Inc. v. Workers Compensation Appeals Board (Verdi), 78 A.3d 1233, 1243 (Pa. Cmwlth. 2013). In order to 11

determine whether substantial evidence supports the WCJ s findings, a reviewing court must examine the record in its entirety. Waymart v. Workers Compensation Appeal Board (Feldman), 766 A.2d 900, 902 (Pa. Cmwlth. 2000). Having done so here, it is evident that substantial evidence of record supports the WCJ s findings of facts and conclusions of law. Finally, Employer argues that the Board erred by failing to address its substantial evidence argument in the Board s decision and order, focusing instead solely on the jurisdictional issue. When an appeal is brought before the Board, the Board shall affirm the workers compensation adjudication, unless it shall find that the adjudication is not in compliance with section 422(a) and other provisions of the [Act]. Section 423(c), 77 P.S. 854.2. Here, the Board noted its review of the record, discussed the procedural history and context of the matter, identified the issues before it, made a technical modification of the WCJ s decision, and concluded that the WCJ did not err in its jurisdictional and causal analyses. (Board Decision at 1-3.) The Board is not required to engage in an extensive discussion of the record where the Board has not determined that the WCJ s decision lacks sufficient competent evidence. Section 422(a), 77 P.S. 834; see also Habib v. Workers Compensation Appeal Board (John Roth Paving Pavemasters), 29 A.3d 409, 411-412 (Pa. Cmwlth. 2011) (discussing the role of the Board in workers compensation proceedings). The brevity of the Board s affirmance fully satisfied its appellate responsibility and the Board did not err in failing to discuss the WCJ s findings in detail. Accordingly, the order of the Board is affirmed. JAMES GARDNER COLINS, Senior Judge 12

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Shenandoah Valley School District and School Claims Services, LLC, Petitioners v. No. 1726 C.D. 2013 Workers Compensation Appeal Board (Sacco), Respondent O R D E R AND NOW, this 18 th day of June, 2014, the Order of the Workers Compensation Appeal Board in the above-captioned matter is hereby AFFIRMED. JAMES GARDNER COLINS, Senior Judge