IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thomas Sigda, :
Petitioner :
:
v. : No. 1913 C.D. 2015
: Submitted: February 12, 2016
Workers’ Compensation Appeal :
Board (Buono Bakery), :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: April 8, 2016
Petitioner Thomas Sigda (Claimant) petitions for review of an order of
the Workers’ Compensation Appeal Board (Board). The Board affirmed a
workers’ compensation judge’s (WCJ) decision denying Claimant’s petition for
review of a utilization review (UR) determination. For the reasons discussed
below, we affirm.
Claimant was employed by Buono Brothers Bakery (Employer) as a
driver/salesperson when he suffered a work-related injury to his right knee on
July 6, 2010, for which he receives workers’ compensation benefits. (Reproduced
Record (R.R.) 41; WCJ Finding of Fact (F.F.) Nos. 1 & 2.) On March 26, 2014,
Employer filed a UR request for review of treatment provided by Edward R.
Stankiewicz, M.D. (Provider), to Claimant from February 18, 2014, and ongoing,
including office visits, all medications, including Compazine, Librium, and
Percocet, and any other treatment. (R.R. 49; Bd. Op. at 1.) On April 14, 2014, the
Pennsylvania Department of Labor and Industry, Bureau of Workers’
Compensation (Bureau), returned the UR request as incomplete. (R.R. 49; Bd. Op.
at 1.) Employer did not file an amended request. (R.R. 49; Bd. Op. at 1.) On
June 9, 2014, Employer filed a new prospective UR request, again seeking review
of all treatment rendered by Provider to Claimant, including office visits, all
medications, including Compazine, Librium, and Percocet, and any other
treatment. (R.R. 41; WCJ F.F. No. 3.) On June 17, 2014, the Bureau returned the
UR request because the insurer claim number was missing and informed Employer
that the original filing date would be preserved if a corrected version of the UR
request was submitted within 14 days. (R.R. 41; WCJ F.F. No. 3.) Employer filed
a corrected UR request on June 27, 2014, and the UR request was assigned to a
utilization review organization (URO), Quality Assurance Reviews, Inc., on
July 11, 2014. (R.R. 41; WCJ F.F. No. 4.)
On August 25, 2014, the URO, through its reviewer, Gregory Gordon,
M.D., MPH (Reviewer), issued a UR determination, concluding that Provider’s
medical treatment was unnecessary and unreasonable in part. (R.R. 41; WCJ F.F.
No. 5.) Reviewer reviewed medical records for Claimant submitted by three
physicians, Claimant’s statement, and spoke with Provider. (R.R. 32.) Reviewer
noted that when Claimant first began seeing Provider, he was prescribed Percocet,
Compazine, and Librium. (R.R. 32.) Provider increased the dosage of Percocet
prescribed to Claimant in order to better manage Claimant’s pain. (R.R. 32.) Per
Reviewer’s conversation with Provider, Provider is no longer prescribing
Compazine and Librium to Claimant. (R.R. 33.) At this time, Provider prescribes
only Percocet to Claimant. (R.R. 33.) Reviewer noted that Claimant’s statement
2
claimed his current treatment helped with his pain management. (R.R. 33.)
Reviewer noted that Percocet is an appropriate pain management medication,
especially for Claimant, who cannot take non-steroidal anti-inflammatory (NSAID)
medications. (R.R. 33). Reviewer also noted that Claimant is not currently being
prescribed Compazine, which is used primarily for treating psychotic disorders, or
Librium, which is primarily used to treat anxiety and alcohol withdrawal.
(R.R. 34.) Reviewer stated that Claimant has not been diagnosed with a psychotic
disorder, anxiety, or alcohol withdrawal as part of his workers’ compensation
injury. (R.R. 34.) Thus, Reviewer determined that monthly office visits and the
prescription for Percocet were reasonable and necessary, but that the prescriptions
for Compazine and Librium were unnecessary and unreasonable, prospective from
June 26, 2014. (R.R. 34.)
On September 3, 2014, Claimant filed a UR petition, seeking review
of the URO’s determination that certain treatment was unreasonable or
unnecessary. (R.R. 49; Bd. Op. at 1.) The WCJ determined that Employer “met its
burden of proof necessary to establish that the medications Compazine and
Librium are not reasonable or necessary treatment from June 26, 2014 into the
future as it applies to the Claimant’s employment injury of July 6, 2010.”
(R.R. 42.) Claimant appealed that decision to the Board, which affirmed the WCJ.
(R.R. 49-53.)
On appeal,1 Claimant argues that: (1) the WCJ improperly shifted the
burden of proof to Claimant; (2) Reviewer used an improper standard of review;
1
“This Court’s review of an order of the Board affirming a WCJ’s decision denying a
petition to review a UR determination is limited to considering whether necessary factual
findings are supported by substantial evidence, and whether an error of law or violation o[f]
(Footnote continued on next page…)
3
(3) the UR request and UR determination were untimely; (4) the WCJ’s credibility
determination was not reasoned; and (5) Employer presented an unreasonable
contest.
Claimant first argues that the WCJ improperly shifted the burden of
proof to Claimant, as evidenced by the WCJ’s statement at the beginning of his
decision that “[t]he instant petition requests that any and all treatment to include
but not limited to office visits and medications including Compazine, Librium and
Percocet, be considered reasonable and necessary as it applies to the Claimant’s
employment injury,” and in Finding of Fact No. 7:
The Claimant does not offer any medical evidence in
opposition to this utilization review determination but
argues that it is entirely unknown from the evidence
whether these medications may be considered for use at
some time in the future and that the Claimant’s provider
would be constrained from prescribing their use in the
future.
(R.R. 41-42.) Claimant argues that the “combination of these two erroneous
statements by the [WCJ] reveals a subtle[] and erroneous shifting of the burden of
proof.” (Claimant’s Br. at 6.) Claimant is correct in asserting that Employer bears
the burden throughout the UR process to prove that Provider’s treatment is not
reasonable or necessary. Topps Chewing Gum v. Workers’ Comp. Appeal Bd.
(Wickizer), 710 A.2d 1256, 1261 (Pa. Cmwlth. 1998). We disagree, however, with
his argument that the WCJ improperly shifted the burden of proof. Conclusion of
(continued…)
constitutional rights occurred.” Womack v. Workers’ Comp. Appeal Bd. (Sch. Dist. of
Philadelphia), 83 A.3d 1139, 1141 n.3 (Pa. Cmwlth.) (citing 2 Pa. C.S. § 704), appeal denied,
94 A.3d 1011 (Pa. 2014).
4
Law number 2 demonstrates that the WCJ correctly applied the burden of proof:
“[Employer] has met its burden of proof necessary to establish that the medications
Compazine and Librium are not reasonable or necessary treatment from
June 26, 2014 into the future as it applies to the Claimant’s employment injury of
July 6, 2010.” (R.R. 42.) The WCJ’s statement at the outset of his decision is
simply a reflection of the procedural posture of the case: the UR determination
found some of Provider’s treatments unreasonable and unnecessary, and Claimant
would like that determination reversed. Furthermore, Finding of Fact number 7 is
not a shift of the burden of proof but is, instead, the WCJ’s summation of
Claimant’s proffered evidence and position. Claimant was aware of Reviewer’s
position and had the opportunity before the WCJ to offer evidence to rebut this
position, but he chose not to do so. We do not view the WCJ’s recitation of this
fact as an improper shifting of the burden.
Second, Claimant argues that Reviewer used an improper standard of
review because “the only treatment deemed unreasonable/unnecessary is treatment
that was never provided,” and that Reviewer was, therefore, obligated to determine
the request was moot. (Claimant’s Br. at 8.) First, we note that Claimant’s
characterization of his treatment history is not supported by the record. According
to the evidence of record, Provider originally prescribed to Claimant Compazine
(10 mg three times a day) and Librium (25 mg three times a day), but now only
prescribes Percocet. (R.R. 32-33.) Claimant cites absolutely no legal authority for
his proposition that a UR request should be considered moot on the basis that the
treatment being reviewed is not currently being prescribed and we are not
persuaded by his bald assertion. Furthermore, we note that this was a prospective
review of Claimant’s past treatment. We are likewise unpersuaded by Claimant’s
5
argument in the alternative that a definite determination could not be reached by
Reviewer for the disputed treatment. We again note that Claimant’s argument is
predicated on an unsupported factual assertion—i.e., that the disputed treatment
was never provided or recommended. Furthermore, Reviewer did not opine that he
could not reach a definite determination, but, in fact, reviewed all the evidence
submitted to him and unequivocally opined that Compazine and Librium were
unnecessary and/or unreasonable.2
Claimant’s third argument is that both the UR request and UR
determination were untimely. First, as to the UR request, Claimant argues that the
“third UR Request was not filed within 30 days of the first time the [Bureau]
returned [Employer’s] improper filing.” (Claimant’s Br. at 10.) Claimant appears
to be arguing that the amended UR request filed on June 27, 2014, was untimely
because it was filed in excess of thirty days after the March 26, 2014 UR request
was returned on April 14, 2014. We first note that Claimant cites no authority for
this proposition. Second, Claimant’s argument ignores the fact that Employer filed
a new UR request on June 9, 2014, which was returned on June 17, 2014, because
the insurer claim number was missing. The returned request informed Employer
that the original filing date would be preserved if a corrected version of the UR
2
Claimant also asserts that the WCJ and Board capriciously disregarded his argument
that Reviewer “improperly addressed causal relationship.” (Claimant’s Br. at 9.) It is unclear
from the record if Claimant raised this issue with the WCJ, but the Board explicitly addressed
this issue in the second-to-last paragraph of its opinion. (R.R. 52.) The Board noted that
Claimant failed to identify specific parts of Reviewer’s report which indicated Reviewer engaged
in prohibited analysis. The Board concluded that the WCJ’s findings did not constitute legal
error: “Claimant was not diagnosed with a psychotic disorder nor was he being treated for
anxiety or alcohol withdrawal to justify the medications of Compazine and Librium.” (R.R. 52.)
Thus, the argument was not capriciously disregarded.
6
request was submitted within 14 days. Employer filed a corrected UR request on
June 27, 2014, ten days after receiving the returned request, and well within thirty
days of the original June 9, 2014 request. Furthermore, Claimant cites no
authority—statutory, regulatory, case law, or otherwise—which prohibits
Employer from filing multiple UR requests. Thus, Claimant’s argument that the
June 27, 2014 corrected UR request was untimely has no basis in fact or law.
As to Claimant’s argument that the UR determination was untimely,
this argument also has no basis in fact or law. As this Court has explained, the
URO has 30 days to issue a written decision. For the purposes of calculating the
30-day review period,
a request for utilization review is considered complete
upon the URO’s receipt of pertinent medical records or
35 days from the assignment of the matter by the Bureau
to the URO, whichever is earlier. 34 Pa. Code
§ 127.465(a). “A URO shall complete its review, and
render its determination, within 30 days of a completed
request for UR.” Id. § 127.465(b). Thus, at latest, a
URO has 65 days from the date of assignment to issue a
written report. If, however, the URO receives medical
records before the 35th day following assignment, the
due date for the written determination would be earlier.
Womack v. Workers’ Comp. Appeal Bd. (Sch. Dist. of Philadelphia), 83 A.3d 1139,
1141-42 (Pa. Cmwlth.), appeal denied, 94 A.3d 1011 (Pa. 2014). In this case, the
assignment date was July 11, 2014, and the determination due date, as calculated
by the Bureau, was September 14, 2014—65 days from the date of assignment.
There is no indication in the record that the URO received Claimant’s medical
record prior to the 35th day—August 15, 2014—which would trigger an earlier due
date. The UR determination was issued on August 25, 2014, well before the
September 14, 2014 due date and was, therefore, timely. Claimant does not argue
that an earlier due date applied based upon the URO’s receipt of Claimant’s
7
medical records and does not appear to dispute that the UR determination was
issued prior to the 65-day deadline.3 Given that there is no evidence that the UR
determination was untimely, we see no need to further address this issue.4
Fourth, Claimant asserts that the WCJ’s credibility determinations
were legally insufficient in violation of the reasoned decision requirement of
Section 422(a) of the Workers’ Compensation Act (Act).5 Our Supreme Court has
3
Instead, Claimant’s counsel is apparently using this case as an opportunity to rehash his
argument that when a UR determination is late, the consequence should be that the determination
is invalid and the treatment at issue should be deemed reasonable and necessary. Counsel raises
several arguments in support of his position—arguments that this Court addressed and rejected in
Womack, and has continued to reject every time counsel has attempted to re-litigate the issue.
Womack, 83 A.3d at 1141-48; Perry v. Workers’ Comp. Appeal Bd. (MidAtlantic Hose Center,
LLC) (Pa. Cmwlth., No. 467 C.D. 2014, filed October 29, 2014) slip op. at 21-23; Samuels v.
Workers’ Comp. Appeal Bd. (PeopleShare) (Pa. Cmwlth., No. 848 C.D. 2014, filed
January 6, 2015) slip op. at 6-7. This Court has previously addressed and repeatedly rejected all
of Counsel’s earlier and identical arguments, and we see no reason to further address these
arguments.
4
Claimant again contends that the WCJ and the Board capriciously disregarded this
issue. This contention is simply not supported by the record. The WCJ made several findings of
fact regarding the timing of the UR request and determination (R.R. 41), and the Board explicitly
addressed this issue on page four of its opinion, concluding that the argument was “without
merit.” (R.R. 52).
5
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 834. Section 422(a) provides, in
pertinent part:
All parties to an adjudicatory proceeding are entitled to a reasoned decision
containing findings of fact and conclusions of law based upon the evidence as a
whole which clearly and concisely states and explains the rationale for the
decisions so that all can determine why and how a particular result was reached.
The workers’ compensation judge shall specify the evidence upon which the
workers’ compensation judge relies and state the reasons for accepting it in
conformity with this section. When faced with conflicting evidence, the workers’
compensation judge must adequately explain the reasons for rejecting or
discrediting competent evidence. Uncontroverted evidence may not be rejected
for no reason or for an irrational reason; the workers’ compensation judge must
(Footnote continued on next page…)
8
explained that “a decision is ‘reasoned’ for purposes of Section 422(a) if it allows
for adequate review by the [Board] without further elucidation and if it allows for
adequate review by the appellate courts under applicable review standards. A
reasoned decision is no more, and no less.” Daniels v. Workers’ Comp. Appeal Bd.
(Tristate Transp.), 828 A.2d 1043, 1052 (Pa. 2003). The Court held that when a
WCJ is faced with conflicting deposition testimony, “some articulation of the
actual objective basis for the credibility determination must be offered for the
decision to be a ‘reasoned’ one which facilitates effective appellate review.”
Id. at 1053. The reasoned decision requirement, however, “does not permit a party
to challenge or second-guess the WCJ’s reasons for credibility determinations;
determining the credibility of witnesses remains the quintessential function of the
WCJ as the finder of fact.” Reed v. Workers’ Comp. Appeal Bd. (Allied Signal,
Inc.), 114 A.3d 464, 470 (Pa. Cmwlth.), appeal denied, 128 A.3d 222 (Pa. 2015).
The WCJ remains free to accept, in whole or part, the testimony of any witness, so
long as the WCJ does not capriciously disregard evidence. Id. A “capricious
disregard” of evidence is a “deliberate disregard of competent evidence which one
of ordinary intelligence could not possibly have avoided in reaching a result.”
Leon E. Wintermyer, Inc. v. Workers’ Comp. Appeal Bd. (Marlowe), 812 A.2d 478,
487 n.12 (Pa. 2002).
Here, Claimant asserts that the WCJ’s credibility determination “cites
no ‘objective’ basis beyond [Reviewer’s] review of records.” (Claimant’s Br.
(continued…)
identify that evidence and explain adequately the reasons for its rejection. The
adjudication shall provide the basis for meaningful appellate review.
9
at 22.) This is a misapprehension of the WCJ’s credibility determination regarding
Reviewer. The WCJ’s determination is not based simply on the fact that Reviewer
reviewed Claimant’s record, but is, instead, based upon the fact that “[Reviewer’s]
opinion is supported by the medical reports, patient statement and review with
Claimant’s provider.” (R.R. 42.) This is different from the case cited by Claimant,
Cucchi v. Workers’ Compensation Appeal Board (Robert Cucchi Painting, Inc.),
96 A.3d 440 (Pa. Cmwlth. 2014), in which this Court concluded that a WCJ’s
credibility determinations—which were based solely on the fact that the experts
“thoroughly reviewed medical records[] [and] diagnostic tests and considered the
statements made by [the claimant] and [his physical therapist]”—was not a
reasoned decision under Daniels. Cucchi, 96 A.3d at 443-44. In this case, the
WCJ based his decision on the fact that Reviewer’s opinion was not only
consistent with Claimant’s medical records, but also with Claimant’s own
statement and Reviewer’s discussion with Provider—in other words, with all the
evidence submitted in this case. Claimant also takes issue with the WCJ’s
statement that Claimant did not offer any medical evidence in opposition to the UR
determination and asserts that the absence of any conflicting evidence is not a
reason to credit Reviewer’s report. This, too, misapprehends the WCJ’s credibility
determination, which is not simply that Reviewer was credible because he was
uncontradicted, but, instead, that Reviewer was credible because his opinion was
supported by the evidence. As this Court has previously noted, “[t]here are
countless objective factors which may support a WCJ’s credibility
determinations.” Dorsey v. Workers’ Comp. Appeal Bd. (Crossing Const. Co.),
893 A.2d 191, 195 (Pa. Cmwlth. 2006), appeal denied, 916 A.2d 635 (Pa. 2007).
A WCJ’s determination that a medical expert’s opinion is credible because it is
10
consistent with all the other evidence in the case is certainly one of the “countless
objective factors” upon which a credibility determination can rest.6
Lastly, Claimant argues he should be entitled to attorney’s fees
because Employer failed to establish a reasonable contest. Section 440(a) of the
Act7 allows the successful claimant to be awarded costs in addition to
compensation, “[p]rovided, [t]hat cost for attorney fees may be excluded when a
reasonable basis for the contest has been established by the employer.” A
reasonable contest is one “undertaken to resolve a genuinely disputed issue, rather
than to harass the claimant.” Lebanon Valley Brethren Home v. Workers’ Comp.
Appeal Bd. (Flammer), 948 A.2d 185, 188 (Pa. Cmwlth. 2008). “In order to be
awarded litigation costs, the claimant must prevail on an issue that was contested
6
Furthermore, we note that Daniels and its progeny are predicated on competing or
conflicting testimony, which is not present in this case, and, therefore, we question the
applicability of the credibility standard enunciated in Daniels. Although we recognize that
Employer bears the burden of proof in this proceeding, it is still an adversarial proceeding, and
we suggest that if Claimant did not want all the evidence in his case to support Reviewer’s
opinion, he should have availed himself of the opportunity to present medical evidence which
would have undermined or contradicted Reviewer’s opinion.
7
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 996(a). Section 440(a) of the Act
provides:
In any contested case where the insurer has contested liability in whole or
in part, including contested cases involving petitions to terminate, reinstate,
increase, reduce or otherwise modify compensation awards, agreements or other
payment arrangements or to set aside final receipts, the employe or his dependent,
as the case may be, in whose favor the matter at issue has been finally determined
in whole or in part shall be awarded, in addition to the award for compensation, a
reasonable sum for costs incurred for attorney’s fee, witnesses, necessary medical
examination, and the value of unreimbursed lost time to attend the proceedings:
Provided, That cost for attorney fees may be excluded when a reasonable basis for
the contest has been established by the employer or the insurer.
11
in the litigation before the WCJ.” Boddie v. Workers’ Comp. Appeal Bd. (Crown
Distribution Ctr.), 125 A.3d 84, 91 (Pa. Cmwlth. 2015).
Here, the issue contested in litigation before the WCJ was the
reasonableness and necessity of Compazine and Librium as part of Claimant’s
treatment. Claimant did not prevail on this issue before the WCJ and, therefore,
Claimant cannot be awarded attorney fees under Section 440(a) of the Act.
Boddie, 125 A.3d at 91. Furthermore, we note that there is nothing in the record to
suggest that Employer’s motivation was to harass Claimant. Thus, Claimant is not
entitled to attorney’s fees.
For the reasons discussed above, the order of the Board is affirmed.
P. KEVIN BROBSON, Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thomas Sigda, :
Petitioner :
:
v. : No. 1913 C.D. 2015
:
Workers’ Compensation Appeal :
Board (Buono Bakery), :
Respondent :
ORDER
AND NOW, this 8th day of April, 2016, the order of the Workers’
Compensation Appeal Board is hereby AFFIRMED.
P. KEVIN BROBSON, Judge