IN THE COMMONWEALTH COURT OF PENNSYLVANIA
G.O. Carlson, Inc., :
Petitioner :
:
v. : No. 1068 C.D. 2018
: Submitted: November 16, 2018
Workers’ Compensation Appeal :
Board (Trauterman), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: March 12, 2019
G.O. Carlson, Inc. (Employer) petitions for review of the Order of the
Workers’ Compensation Appeal Board (Board) affirming the decision of a Workers’
Compensation Judge (WCJ) that granted the Petition for Penalties (Penalty Petition)
filed by Charles Trauterman (Claimant). The WCJ concluded Employer violated the
Workers’ Compensation Act1 (Act) by denying payment for medical treatment,
including a proposed lumbar fusion surgery, which the WCJ found to be causally
related to Claimant’s work injury. On appeal, Employer argues the Board erred
because: the proposed surgery was not causally related to Claimant’s accepted work
injury; Employer had good reason for not preauthorizing the surgery; and the WCJ
and Board did not consider that Employer ultimately did, in good faith, preauthorize
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
the surgery in December 2015, subject to its right to file a utilization review (UR).
Discerning no error or abuse of discretion, we affirm.
Claimant, a steel worker, sustained a work-related injury on January 12, 2009.
Employer issued a Notice of Compensation Payable (NCP), describing the injury as
a lumbar strain and accepting liability therefor. Claimant returned to light-duty work
on January 22, 2009, and eventually returned to full duty. On July 20, 2015,
Claimant filed the Penalty Petition asserting that Employer violated Section
306(f.1)(1) of the Act, 77 P.S. § 531(1), by refusing to preauthorize a lumbar fusion
surgery recommended by Claimant’s treating physician without Employer having
received a supersedeas or “properly challenging the reasonableness and necessity of
the surgery.” (WCJ Decision, Finding of Fact (FOF) ¶ 2.) In its answer, Employer
denied the Penalty Petition’s material allegations. The Penalty Petition was assigned
to the WCJ, who held hearings at one of which Claimant testified.
Claimant testified regarding the treatment for his back injury with James
Macielak, M.D., beginning in August 2009. After years of treatment, Dr. Macielak
suggested that Claimant undergo a L4, L5-S1 fusion, which was scheduled for June
3, 2015. Claimant explained the surgery did not happen because an adjuster from
Employer’s insurer (Adjuster) advised him that Employer “wouldn’t cover anything
until [Claimant] had a second opinion.” (Reproduced Record (R.R.) at 30a.) At
Employer’s direction, Claimant went to Jon Levy, M.D., a board-certified
orthopedic surgeon, for an Independent Medical Examination (IME) on June 10,
2015. Following Dr. Levy’s IME, Claimant still did not undergo the surgery, but he
hoped he would be able to have it soon. Claimant acknowledged that Dr. Levy did
not think the surgery was reasonable or necessary because Claimant was overweight
2
and smoked. Claimant has tried to stop smoking, but has been unsuccessful. He
continued to treat with Dr. Macielak.
Dr. Levy’s deposition and IME Report were submitted as evidence. In the
IME Report, Dr. Levy explained that Claimant complained of low back pain with
radicular symptoms in both lower extremities, which have been consistent since
January 12, 2009. Dr. Levy observed there was no evidence that Claimant was
magnifying his symptoms, and Claimant’s complaints of pain were consistent with
the objective findings. He stated Claimant was not “fully recovered,” “ha[d]
ongoing degenerative [disc] disease, ongoing lumbar radicular symptoms,” and the
“preexistent degenerative disease . . . was potentially aggravated by the work event
and has left him with residual lumbar radiculopathy.” (Id. at 76a.) Dr. Levy
“believe[d] that [Claimant’s] current condition [wa]s directly and causally related to
the work event of January 12, 2009” and did “not believe there [were] any non-
work[-]related findings which contributed to [that] current situation.” (Id. at 76a-
77a.) According to Dr. Levy, the proposed surgery was not reasonable due to
Claimant being a heavy smoker and complaining more of axial (back) pain than
radicular pain. Dr. Levy believed that Claimant’s heavy smoking made the surgery
more likely to fail, making it an option of last resort, and that the surgery likely
would not be successful in resolving Claimant’s back pain.
Similar to the IME Report, Dr. Levy testified Claimant complained of “low
back pain, bilateral lower extremity discomfort, numbness in his left foot on an
intermittent basis, right leg pain radiating to his knee.” (Id. at 47a.) Dr. Levy’s
review of Claimant’s x-rays taken shortly after the work injury revealed that
Claimant had mild degenerative changes at L4-L5 that preexisted the work injury.
Following his examination of Claimant and review of Claimant’s medical records
3
and diagnostic studies, Dr. Levy diagnosed Claimant with lumbar degenerative disc
disease, which preexisted the work injury but was potentially aggravated by the work
injury, lumbar strain, and lumbar radiculopathy. Dr. Levy indicated he was not
aware that the lumbar radiculopathy existed prior to the work injury, and
acknowledged that some lumbar strains never fully recover. (Id. at 53a-54a.) Dr.
Levy agreed that Claimant was not fully recovered from the work injury, and
Claimant’s current condition was “directly and causally related to the work event of
January 12, 2009.” (Id. at 57a.)
On the issue of the proposed surgery, Dr. Levy recounted Claimant’s history
of heavy smoking, which was a contraindication for lumbar fusion surgery because
smokers do worse with surgical intervention. He indicated that smokers have a
higher incidence of back pain and that smoking accelerates degenerative conditions,
such as degenerative disc disease. Considering that a lumbar strain is a soft tissue
injury, Dr. Levy opined that a lumbar fusion is not a treatment for soft tissue injuries,
so he did not believe this to be the reason for the surgery. However, Dr. Levy also
indicated that while the degenerative condition played a role in the proposed surgery,
it was “impossible to ascertain what percentage of [Claimant’s] symptoms related to
the normal aging process in a smoker, versus someone who had an injury six years
prior” and “if Claimant [had] never recovered . . . in my opinion, . . . there is a causal
relationship between his work event and his problem.” (Id. at 63a-64a.) He further
opined the surgery was not reasonable or necessary because surgeries are usually
more successful at relieving leg pain, rather than back pain, and are less successful
for smokers. Because Claimant complained more of back pain than leg pain and
was a heavy smoker, Dr. Levy did not consider Claimant a good candidate for the
surgery. Dr. Levy also acknowledged that Claimant had undergone a long period of
4
conservative care, smokers do sometimes have this surgery, and surgery was a
potential option. (Id. at 58a, 61a-62a.)
The parties stipulated that Adjuster called Claimant and left a message stating,
“I just wanted to let you know based on your IME, we will not be approving surgery”
and that “we will not [be] approving anything based on that IME report.” (Id. at
27a.) On December 23, 2015, Adjuster sent Dr. Macielak a fax “confirm[ing its]
willingness to preauthorize the . . . surgery [he] recommended with the reservation
of our right to review the bill before making payment to make certain it is reasonable
and necessary.” (Id. at 79a.) Employer’s counsel acknowledged at the hearing that
Employer had not filed a prospective UR petition challenging the reasonableness
and necessity of the proposed surgery. (Id. at 36a.)
The WCJ credited Claimant’s testimony, explaining that his testimony was
internally consistent and consistent with the history given to Dr. Levy, and that his
continued efforts to work enhanced his credibility. The WCJ further found Dr.
Levy’s IME Report competent and credible, and that Dr. Levy’s testimony was
credible to the extent it was consistent with his IME Report. Based on those
credibility determinations, the WCJ found that: Claimant was not fully recovered
from the work injury; “[t]he current condition of Claimant’s lumbar spine is directly
and causally related to the” work injury; “Employer denied payment for medical[]
treatment, including the proposed surgery prior to June 3, 2015”; Employer “based
this denial on Dr. Levy’s report”; and Employer “did not retract this denial until
December 23, 2015.” (FOF ¶ 16.) The WCJ noted that “[n]either party filed a
prospective [UR] request regarding the proposed surgery.” (Id.)
The WCJ concluded that Employer had “violated the Act by denying payment
for Claimant’s work-related medical treatment, including but not limited to the
5
proposed spinal fusion, beginning as of June 3, 2015[,] and continuing through
December 22, 2015.” (WCJ Decision, Conclusion of Law (COL) ¶ 2.) The WCJ
held that Employer’s choice to challenge the proposed surgery based on causation
exposed it to penalties if that surgery was found to be related to the work injury. (Id.
(citing Listino v. Workmen’s Comp. Appeal Bd. (INA Life Ins. Co.), 659 A.2d 45, 48
(Pa. Cmwlth. 1995)).) Noting that Adjuster advised Claimant that Employer “would
not be approving ‘anything,’ including surgery, based on Dr. Levy’s report,” the
WCJ observed that “Dr. Levy’s report related the condition of Claimant’s lumbar
spine to the work injury.” (Id. (emphasis added).) The WCJ concluded that Dr.
Levy’s objection to the surgery was not based on causation, but that it was
unreasonable due to Claimant’s smoking history and the nature of his complaints.
Questions regarding the reasonableness and necessity of the surgery should have
been resolved, the WCJ held, by Employer filing a prospective UR petition, but it
did not do so. The WCJ rejected Employer’s contention that it was not required to
preauthorize the surgery, noting that “[A]djust[e]r’s phone message went beyond a
simple denial of preauthorization[, i]t referenced a denial of ‘anything,’ including
the surgery, based on Dr. Levy’s report.” (Id.)
These circumstances, according to the WCJ, supported the award of a penalty
pursuant to McLaughlin v. Workers’ Compensation Appeal Board (St. Francis
Country House), 808 A.2d 285, 289-91 (Pa. Cmwlth. 2002). In McLaughlin, this
Court held that the employer violated Section 306(f.1) of the Act because “[b]y
refusing to authorize the scheduled surgery and indicating that it would not pay for
‘any treatment’ pending its petition for termination” without filing a UR petition, the
employer “effectively prevented [the c]laimant from receiving the treatment
recommended by his treating physician.” Id. at 289-90. Because the treatment was
6
found to be causally related to the work injury, we upheld the award of penalties in
McLaughlin. Id. at 290. Accordingly, the WCJ granted the Penalty Petition and
awarded “a penalty equal to twenty percent of the Claimant’s total disability rate for
the period of time from June 3, 2015[,] to and including December 22, 2015.”2 (COL
¶ 3.) Employer appealed to the Board, which affirmed. It now petitions this Court
for review.3
On appeal, Employer first argues that the WCJ erred in finding that the lumbar
fusion surgery was causally related to his accepted work injury, rather than
Claimant’s preexisting degenerative disc disease. Employer asserts Dr. Levy opined
that such surgeries are not performed to treat lumbar strains, and the surgery
proposed for Claimant was to treat his degenerative condition. Moreover, Employer
argues, Claimant did not file a review petition in order to expand the description of
his work injury and cannot do so through a penalty petition. Because it did not deny
medical treatment that was causally related to Claimant’s work injury, Employer
maintains it did not violate the Act and the Penalty Petition should have been denied.
Claimant responds there was no error in the WCJ’s finding that the medical
treatment at issue was causally related to Claimant’s work injury and that, because
Employer chose not to pay for the treatment based on causation, it risked being
subject to penalties if the WCJ found it was wrong. Listino, 659 A.2d at 48.
Claimant notes Employer focuses on the lack of preauthorization of the surgery, but
Employer advised Claimant that it was not going to pay for “anything,” including
2
The WCJ found that Employer reasonably contested the Penalty Petition because the WCJ
did not read McLaughlin as imposing a duty on employers to preauthorize medical treatment.
(COL ¶ 4.) Claimant did not challenge the WCJ’s conclusion.
3
This Court’s “review is limited to determining whether constitutional rights were violated,
whether the adjudication is in accordance with the law[,] or whether necessary findings of fact are
supported by substantial evidence.” City of Philadelphia v. Workers’ Comp. Appeal Bd.
(Sherlock), 934 A.2d 156, 159 n.5 (Pa. Cmwlth. 2007).
7
the surgery, following the IME. (R.R. at 27a.) Such unilateral refusal, Claimant
argues, violates the Act. Further, Claimant maintains it was not necessary for him
to file a review petition because the relationship between the proposed surgery and
Claimant’s work injury was the central issue in the Penalty Petition proceeding, and
there was no change to the work injury, only to the diagnosis of that injury. The
Body Shop v. Workers’ Comp. Appeal Bd. (Schanz), 720 A.2d 795, 799 (Pa. Cmwlth.
1998). Pointing to Dr. Levy’s credited IME Report and testimony regarding the
relationship of Claimant’s work injury to his current diagnoses, Claimant asserts
there was substantial evidence to support the WCJ’s finding. (R.R. at 57a, 76a-77a,
85a.)
Section 435(d)(i) of the Act, 77 P.S. § 991(d)(i),4 permits the imposition of
penalties where an employer violates the Act, rules, or regulations, which the
claimant bears the burden of proving. Shuster v. Workers’ Comp. Appeal Bd. (Pa.
Human Relations Comm’n), 745 A.2d 1282, 1288 (Pa. Cmwlth. 2002). If the
claimant establishes a violation, the employer may offer rebuttal evidence to show
that no violation occurred. Dep’t of Transp. v. Workers’ Comp. Appeal Bd.
(Clippinger), 38 A.3d 1037, 1047 (Pa. Cmwlth. 2011). A WCJ is not required to
award penalties, even if a violation of the Act is proven, and the decision to award
penalties, or not, is within the WCJ’s discretion. The Budd Co. v. Workers’ Comp.
Appeal Bd. (Kan), 858 A.2d 170, 176 (Pa. Cmwlth. 2004). We will not reverse that
decision absent an abuse of discretion. Id.
Section 306(f.1)(1)(i) of the Act provides, in relevant part, that “[t]he
employer shall provide payment in accordance with this section for reasonable
surgical and medical services, services rendered by physicians or other health care
4
Section 435 was added by Section 3 of the Act of February 8, 1972, P.L. 25, as amended.
8
providers, including an additional opinion when invasive surgery may be necessary,
medicines and supplies, as and when needed.” 77 P.S. § 531(1)(i). “Once the
employer’s liability for the work injury has been established, the employer may not
unilaterally stop making benefit payment[s] in the absence of a final receipt, an
agreement, a supersedeas[,] or any other order of the WCJ authorizing such action.”
McLaughlin, 808 A.2d at 288. “Absent such authority, . . . the employer must
continue to make payment[s] while challenging the claimant’s entitlement to
benefits.” Id. at 288-89. An employer that unilaterally stops paying a claimant’s
medical bills based solely on causation assumes the risk of exposure to penalties if
a WCJ finds that the medical expenses are causally related to the work injury.
Listino, 659 A.2d at 48. If a WCJ determines that the treatment was not causally
related to the work injury, then the employer is not subject to penalties and does not
have to pay for the treatment retroactively. Kuemmerle v. Workers’ Comp. Appeal
Bd. (Acme Mkts., Inc.), 742 A.2d 229, 232 (Pa. Cmwlth. 1999).
Employer argues that it was error to find that Claimant’s surgery was causally
related to the work injury because the only accepted injury on the NCP was a lumbar
strain, and Dr. Levy opined that the surgery was not performed for a lumbar strain,
but “was only performed to correct the claimant’s preexisting degenerative disease.”
(Employer’s Brief (Br.) at 14.) Employer therefore argues that the WCJ erred by
finding the surgery causally related to the accepted work injury in the context of a
Penalty Petition, without having a review petition before him in order to expand the
accepted work injury.
Initially, Dr. Levy’s testimony was more expansive regarding the diagnoses
of Claimant’s work injury than set forth in Employer’s brief. Dr. Levy did not limit
his diagnoses to a lumbar strain. The IME Report indicates that Claimant has
9
complained of the same symptoms, “low back pain with radicular symptoms into
both the lower extremities,” since the work injury occurred. (R.R. at 76a.) The IME
Report further reflects Dr. Levy’s opinion that Claimant “ha[d] ongoing
degenerative [disc] disease, [and] ongoing lumbar radicular symptoms,” and that the
“preexistent degenerative disease . . . was potentially aggravated by the work event
and has left him with residual lumbar radiculopathy.” (Id.) Dr. Levy reiterated these
diagnoses in his testimony. He further opined, in both the IME Report and
deposition, that he “believe[d] that [Claimant’s] current condition is directly and
causally related to the work event of January 12, 2009.” (Id. at 57a, 76a-77a
(emphasis added).) Although Dr. Levy indicated Claimant’s degenerative condition
played a role in the proposed surgery, he explained it was “impossible to ascertain
what percentage of [Claimant’s] symptoms related to the normal aging process in a
smoker, versus someone who had an injury six years prior,” and opined “if [Claimant
had] never recovered . . . in my opinion, . . . there is a causal relationship between
his work event and his problem.” (Id. at 63a-64a.) Thus, Employer’s
characterization of Dr. Levy as testifying that the surgery “was only performed to
correct the claimant’s preexisting degenerative disease,” (Employer’s Br. at 14), is
not correct.
Employer contends that the only accepted work injury was a lumbar strain as
reflected on the NCP. Moreover, Dr. Levy concluded that Claimant suffered from
lumbar degenerative disc disease, a lumbar strain and lumbar radiculopathy, and that
the surgery is not performed to treat a lumbar strain. Employer therefore believes
that finding it was responsible for the surgery requires an expansion of the work-
related injury, which cannot be done in a Penalty Petition but required Claimant to
file a review petition.
10
We disagree that a review petition was necessary under the circumstances in
this case. The Penalty Petition that Claimant filed raised the issue of whether the
treatment was related to the work injury. The facts of this case are similar to those
in The Body Shop. There, the NCP described the injury as “an acute low back strain,”
and we stated that “an exact diagnosis” was not required, “but only a reasonably
precise description of the injury.” The Body Shop, 720 A.2d at 799. After the
claimant’s continued pain, and the performance of diagnostic studies, “the diagnosis
– not the injury – changed to a herniated disc.” Id. We held that “[b]ecause the
diagnosis of a herniated disc does not constitute a separate injury but is just another
diagnosis of the initial injury,” the claimant’s original notice was sufficient to
describe the injury to the claimant’s back. Id. We therefore upheld the
determination that the employer had violated the Act when it refused to pay the
medical expenses related to the herniated disc, which included surgery. The Body
Shop relied upon State Workmen’s Insurance Fund v. Workmen’s Compensation
Appeal Board (Wagner), 677 A.2d 892 (Pa. Cmwlth. 1996), which similarly held
that a diagnosis of carpal tunnel syndrome did not constitute a separate injury from
the original wrist and hand injury diagnosed as DeQuervain disease, but was another
diagnosis of the initial injury. See also Mohawk Indus., Inc. v. Workers’ Comp.
Appeal Bd. (Weyant) (Pa. Cmwlth., No. 197 C.D. 2013, filed Sept. 18, 2013), slip
op. at 7-8 (concluding that the employer, which accepted a work injury described in
the NCP as upper back and neck pain, violated the Act when, based on causation, it
unilaterally refused to pay for surgical procedures related to a disc herniation, which
the claimant’s physician credibly opined during the penalty petition proceedings was
11
needed to treat the work-related aggravation to the claimant’s preexisting
conditions).5
The NCP here describes Claimant’s work injury as a “lumbar strain,” and Dr.
Levy opined that a lumbar fusion surgery would not be appropriate for that injury.
However, Dr. Levy also noted that Claimant “has had consistent complaints since
the work event,” and opined that Claimant had preexisting lumbar degenerative disc
disease “which was potentially aggravated by the work event and has left him with
residual lumbar radiculopathy,” and that his “current condition is directly and
causally related to the work event of January 12, 2009” (the work injury). (R.R. at
57a, 76a.) These conditions all relate to Claimant’s lumbar spine, the area that
Employer agreed that Claimant had injured at work. This is similar to The Body
Shop, where an initial diagnosis of acute low back strain was clarified to include a
herniated disc, and Wagner, where carpal tunnel was a later diagnosis of the wrist
and hand injury. Here, Claimant’s work injury to his lumbar spine remained the
same, while the diagnoses more specifically includes aggravation of preexistent
degenerative disease, and residual lumbar radiculopathy, in addition to a lumbar
strain. The WCJ, acting in his exclusive role as fact finder, Sell v. Workers’
Compensation Appeal Board (LNP Engineering), 771 A.2d 1246, 1250-51 (Pa.
2001), credited Dr. Levy’s IME Report and testimony. That evidence supports the
WCJ’s finding that Claimant’s current lumbar condition, which the surgery is
intended to treat, is directly and causally related to Claimant’s January 12, 2009
accepted work injury.
Importantly, the WCJ did not limit his finding of a violation of the Act to the
refusal to preauthorize the surgery, but found that Employer denied payment for
5
Mohawk Industries is cited for its persuasive value in accordance with Section 414(a) of
the Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).
12
work-related medical treatment generally based on the IME Report. This finding is
supported by Adjuster’s statement that Employer would not be paying for the
proposed surgery or “anything” based on the IME Report. (R.R. at 27a.)
Because the WCJ’s finding that Employer refused to pay for medical
treatment that was causally related to Claimant’s January 12, 2009 accepted work
injury is supported by substantial evidence6 and there is no dispute that Employer
acted unilaterally, Claimant established that Employer violated Section
306(f.1)(1)(i) of the Act. As reflected by its arguments to this Court, Employer’s
refusal to pay was based on its belief that the surgery was not causally related to
Claimant’s accepted work injury, a lumbar strain. However, an employer that
unilaterally chooses not to pay for a medical treatment on this basis assumes the risk
of being assessed a penalty if it was wrong. Listino, 659 A.2d at 48. In deciding not
to preauthorize the surgery or pay for “anything” based on the IME Report without
the benefit of a WCJ Order, supersedeas, final receipt, or agreement, Employer
assumed the risk here and lost.
Employer next asserts no penalties should have been awarded because it “had
a strong basis to initially deny preauthorization of the surgery in question” where the
accepted injury was a lumbar strain and the suggested surgery “clearly would not
have been causally related to a lumber s[t]rain.” (Employer’s Br. at 15-16.)
Claimant responds that the WCJ’s finding of liability for penalties was based not
only on the refusal to preauthorize the surgery, but also on Employer’s unilateral
refusal to pay for “anything,” a position Employer did not change until late
December 2015. Claimant points out that Dr. Levy related Claimant’s current
6
“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” City of Philadelphia v. Workers’ Comp. Appeal Bd. (Kriebel),
29 A.3d 762, 769 (Pa. 2011).
13
condition to the work injury and, although he questioned the reasonableness and
necessity of the surgery, Employer did not request a prospective UR of that
treatment. Under these facts, Claimant asserts, the WCJ properly awarded penalties.
The award of penalties for violations of the Act is within the sound discretion
of the WCJ and will not be overturned unless there is an abuse of discretion. The
Budd Co., 858 A.2d at 176. “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 Grp. v. Workers’ Comp. Appeal Bd. (Coughenaur), 7 A.3d 325, 327 n.3 (Pa.
Cmwlth. 2010).
Employer’s argument essentially asks this Court to intrude upon the WCJ’s
discretionary award of penalties because it “had a strong basis” not to preauthorize
a surgery that was “clearly” not related to Claimant’s lumbar strain. (Employer’s
Br. at 15-16.) However, no matter how strongly Employer believed the surgery was
not causally related to Claimant’s work injury, the denial of preauthorization
“effectively prevented Claimant from receiving the treatment recommended by his
treating physician.” McLaughlin, 808 A.2d at 289. Moreover, to the extent
Employer relies on Dr. Levy’s testimony that a fusion surgery would not be used to
treat a soft tissue injury like a strain, such arguments are “the equivalent of
challenging the reasonableness and necessity of a particular treatment.” St. Joseph’s
Ctr. v. Workers’ Comp. Appeal Bd. (Williams) (Pa. Cmwlth., No. 2062 C.D. 2010,
filed Aug. 23, 2011), slip op. at 30.7 When Employer decided to act unilaterally,
without filing a review petition or UR petition challenging, respectively, the causal
relationship or reasonableness and necessity of the recommended surgery, it violated
St. Joseph’s Center is cited for its persuasive value in accordance with Section 414(a) of
7
the Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).
14
the Act and became subject to penalties. McLaughlin, 808 A.2d at 289-90. As we
explained in McLaughlin:
This Court has consistently taken the strong position against the
employer’s unilateral cessation of medical benefit payment by holding
that the employer’s unjustified and unilateral cessation or modification
of the claimant’s benefits without prior authorization triggers the
penalty provision of Section 435 of the Act.
Id. at 290. Since the record supports the WCJ’s finding that Employer’s unilateral
actions violated the Act, we cannot say that the WCJ’s judgment was manifestly
unreasonable, that the WCJ misapplied the law, or that the WCJ’s actions were “a
result of partiality, prejudice, bias or ill will.” Allegis Grp., 7 A.3d at 327 n.3. Thus,
there was no abuse of discretion in awarding a penalty.
Finally, Employer contends the WCJ and Board did not address Adjuster’s
December 2015 preauthorization of the surgery. Employer maintains this good faith
offer should have been considered and, if it had been, penalties would not have been
awarded. Claimant responds that the WCJ and Board did consider and address the
ultimate preauthorization, as reflected in their written decisions.
As Claimant points out, Employer’s argument that the WCJ and Board did not
consider or address the December 2015 preauthorization is belied by the decisions
issued. The WCJ made findings of fact about the December 23, 2015 fax sent by
Adjuster to Dr. Macielak and concluded that Employer violated the Act up to and
including December 22, 2015, the day before the fax. (FOF ¶¶ 10, 16; COL ¶ 2.)
The Board similarly noted the fax sent by Adjuster in its opinion. (Board Opinion
at 4.) Again, Employer’s argument requests this Court to substitute its discretion for
that of the WCJ and overturn the WCJ’s penalty award. Having found no abuse of
discretion, we may not infringe upon the WCJ’s discretion.
15
Accordingly, we affirm.
_____________________________________
RENÉE COHN JUBELIRER, Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
G.O. Carlson, Inc., :
Petitioner :
:
v. : No. 1068 C.D. 2018
:
Workers’ Compensation Appeal :
Board (Trauterman), :
Respondent :
:
ORDER
NOW, March 12, 2019, the Order of Workers’ Compensation Appeal Board,
entered in the above-captioned matter, is AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge