J.M. Rotegliano v. Clinton Hospital Corp. (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joan M. Rotegliano, : CASES CONSOLIDATED
Petitioner :
:
v. :
:
Clinton Hospital Corporation (Workers’ :
Compensation Appeal Board), : No. 616 C.D. 2021
Respondent :
:
:
Clinton Hospital Corp., :
Petitioner :
:
v. :
:
Joan M. Rotegliano (Workers’ :
Compensation Appeal Board), : No. 628 C.D. 2021
Respondent : Submitted: January 21, 2022

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: May 12, 2022

Joan M. Rotegliano (Claimant) petitions for review from the May 19,
2021, order of the Workers’ Compensation Appeal Board (Board), which affirmed
the April 16, 2020, order of the Workers’ Compensation Judge (WCJ). The WCJ’s
order granted a suspension petition filed by Clinton Hospital Corporation
(Employer) based on Claimant’s failure to attend a scheduled independent medical
examination (IME); granted Employer’s utilization review (UR) petition concerning
Dr. Michael Greenberg’s prescription to Claimant of opioid pain medication; and
ordered that Claimant undergo periodic testing to determine whether she resumes
using opioid pain medication from a source other than Dr. Greenberg. Employer
cross-petitions for review from the Board’s denial of Employer’s motion to quash
Claimant’s appeal to the Board from the WCJ’s order. Upon review, we affirm.

I. Factual & Procedural Background
On April 12, 1993, Claimant sustained a work-related injury. WCJ Op.,
4/16/20, at 6; Reproduced Record (R.R.) “A.” Via a Notice of Compensation
Payable, Employer accepted the injury, described as Herniated Nucleus Pulposus
(HNP) at C5-6, and began paying wage loss and medical benefits, including payment
for cervical surgery several weeks after the incident. Id. In February 2015, the
current WCJ issued a decision expanding the description of Claimant’s injury to
include aggravation or acceleration of degenerative changes at C4-5 and C6-7, nerve
root encroachment and spinal cord compression at C4-5, and mildly increased
narrowing at C5-6. Id. at 7. That decision also upheld a UR report finding
Claimant’s prescriptions by Dr. Greenberg for opioids, including multiple daily
doses of Percocet, Hydrocodone liquid, and Valium, to be reasonable and necessary.
Id.
On August 4, 2017, the WCJ issued a decision and order granting
Employer’s petition for physical examination and ordering Claimant to undergo an
IME with Dr. William Beutler, M.D. (Dr. Beutler) on August 10, 2017, at an address
in Harrisburg. WCJ Op. at 8. On August 11, 2017, Employer filed a suspension
petition based on Claimant’s failure to attend the scheduled IME. Id. at 5. Relevant

2
to this appeal, the following petitions were also before the WCJ in this litigation: UR
petitions filed by both sides in August 2017 concerning Claimant’s treatment with
Dr. Greenberg, her longtime treating doctor for these injuries; Employer’s April
2018 suspension petition asserting refusal of reasonable treatment (in-patient
treatment for opioid dependency); and Employer’s April 2018 petition to review
medical treatment (in-patient rehabilitation for opioid dependency).1 Id. at 5-6.
Claimant testified twice before the WCJ. WCJ Op. at 11-16. Claimant
also submitted affidavits from herself and her caregiver-driver, stating that they did
not have the correct address for the IME and had to try two different addresses before
finding the correct location, but arriving too late because Dr. Beutler had left for the
day. Id. at 33. Employer submitted the deposition testimony of Dr. Beutler, who
was able to conduct an IME of Claimant in November 2017, and Dr. Michael R.
Clark (Dr. Clark), who conducted a medical records review of Claimant’s medical
treatment, specifically Dr. Greenberg’s continuing prescriptions for opioid pain
medication. Id. at 16-32. Employer also presented the UR reviewer’s report finding
Dr. Greenberg’s medical treatment partially reasonable and necessary, and
surveillance video taken of Claimant. Id. at 8-10.
The WCJ issued his opinion on April 16, 2020. The WCJ granted
Employer’s suspension petition upon concluding that Claimant had the correct
address for the IME, and therefore her failure to attend was due to her own fault.
WCJ Op. at 36. The WCJ granted Employer’s UR petition concerning Dr.
Greenberg’s medical care and denied Claimant’s UR petition also concerning Dr.
Greenberg’s care upon determining that Dr. Greenberg’s treatment of Claimant was
not reasonable and necessary, particularly as to the Hydrocodone liquid, Percocet,

1
The WCJ’s decision addressed and resolved additional petitions and issues that have not
been raised in this appeal by either side.
3
Valium, and office visits every twenty days for prescription refills and injections.
Id. at 33-34 & 36. Finally, the WCJ sua sponte ordered Claimant to undergo drug
testing for opioids every sixty days. Id. at 37. If a test returns a positive result,
Employer may ask that Claimant enroll in an in-patient rehabilitation program run
by Johns Hopkins, at Employer’s expense, and if Claimant refuses, Employer may
seek immediate suspension of her benefits. Id. at 38.
The Board denied Employer’s motion to quash, which asserted that
Claimant’s appeal waived all issues for lack of specificity in the notice of appeal,
but affirmed the WCJ’s opinion in full. The Board concluded that Claimant’s
presentation was deficient, but the record was sufficient to allow it to conduct review
limited to whether the WCJ’s determinations were supported by substantial evidence
of record. Board Op., 5/19/21, at 1 & 6-7; R.R. “A.” Claimant appeals to this Court,
challenging the lower tribunals’ merits determinations, and Employer appeals the
Board’s denial of its motion to quash.2

II. Discussion
A. Board’s Denial of Employer’s Motion to Quash
Section 111.11 of the regulations related to the Pennsylvania Workers’
Compensation Act (Act)3 states that an appeal of a WCJ’s determination to the Board
shall be filed on a form provided by the Board and that

2
On appeal, this Court’s scope of review is limited to determining whether constitutional
rights were violated, whether an error of law was committed and whether necessary findings of
fact were supported by substantial evidence. Morocho v. Workers’ Comp. Appeal Bd. (Home
Equity Renovations, Inc.), 167 A.3d 855, 858 n.4 (Pa. Cmwlth. 2017). On questions of law, our
scope of review is plenary, and our standard of review is de novo. Edwards v. Workers’ Comp.
Appeal Bd. (Epicure Home Care, Inc.), 134 A.3d 1156, 1161 (Pa. Cmwlth. 2016).
3
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
4
 [a]ll forms must contain the following information: . . . A
statement of the particular grounds upon which the appeal
is based, including reference to the specific findings of fact
which are challenged and the errors of the law which are
alleged. General allegations which do not specifically
bring to the attention of the Board the issues decided are
insufficient.

34 Pa. Code § 111.11(a)(2).
In Jonathan Sheppard Stables v. Workers’ Compensation Appeal
Board (Wyatt), 739 A.2d 1084 (Pa. Cmwlth. 1999), the employer’s appeal used the
Board’s standard form and language and enumerated the findings of fact in the
WCJ’s decision being appealed and stated that they were not supported by
substantial evidence. Id. at 1088. The appeal also enumerated conclusions of law
in the WCJ’s decision (“2-10”), after using the standard language on the appeal form:
“I hereby appeal from the decision of [the WCJ] and specify the following errors of
law committed by the said [WCJ], and the reasons why the decision does not
conform to the provisions of the [Act].” Id. (emphasis added). Notably, while the
employer enumerated the conclusions it sought to challenge, it did not take the
further step of specifying the reasons why the decision violated the Act. Id.
Despite having failed to specify to the Board its legal reasons in its
appeal documentation, the employer in Jonathan Sheppard Stables briefed and
argued several particularly alleged legal errors by the WCJ, including whether the
claimant was in the course and scope of employment when injured and whether the
WCJ correctly awarded disfigurement benefits. Id. It is not clear whether the Board
addressed the employer’s legal issues. Id. at 1087. When the employer subsequently
appealed to this Court, however, we found employer’s legal issues waived for
purposes of appeal:

5
 Employer utterly failed to raise any of the foregoing
claims of error with any degree of specificity in its appeal
to the Board. . . . [I]n specifying the errors of law
committed by the WCJ and the reasons why his decision
does not conform to the provisions of the Act, Employer
merely stated “2-10” on the appeal form to the Board. It
is unclear as to what “2-10” is meant to convey as a basis
for the appeal to the Board, and such a cryptic assertion
clearly does not specify the errors of law committed by the
WCJ or why his decision does not conform to the
provisions of the Act.

Id. at 1089 & n.5. We did not, however, find the employer had waived its assertions
that the WCJ’s factual determinations were not supported by substantial evidence,
and we affirmed on those grounds. Id. at 1089-91.
Likewise, in Matticks v. Workers’ Compensation Appeal Board
(Thomas J. O’Hara Co., Inc.), 872 A.2d 196 (Pa. Cmwlth. 2005), we stated:

Here, Employer followed the identical appeal process
utilized by the employer in Jonathan Sheppard Stables.
Employer’s appeal form simply listed WCJ Spizer's
findings of fact (Nos. 3-19) that allegedly were not
supported by substantial competent evidence and listed the
WCJ’s conclusions of law (Nos. 2-5) that allegedly
contained errors of law. . . . Based on Jonathan Sheppard
Stables, the Court is compelled to agree with Claimant that
Employer effectively waived its [legal] arguments . . .
because Employer failed to properly preserve those issues
in its appeal.
Id. at 202; see also Steglik v. Workers’ Comp. Appeal Bd. (Delta Gulf Corp.), 755
A.2d 69, 74 (Pa. Cmwlth. 2000) (holding that merely listing conclusion of law by
number is insufficient to preserve legal issue for appeal).
Recently, in W&W Contractors, Inc. v. Workers’ Compensation Appeal
Board (Holmes) (Pa. Cmwlth., No. 836 C.D. 2020, filed June 28, 2021), 2021 WL

6
2644493 (unreported),4 the employer argued that all it needed to preserve a legal
challenge to the WCJ’s award of attorneys’ fees to the claimant was to list the
corresponding finding of fact and conclusion of law in its appeal to the Board, and
that any explanation of why these were being challenged was not necessary. W&W
Contractors, slip op. at 11-12, 2021 WL 2644493, at *5. Relying on Jonathan
Sheppard Stables, we held that simply listing the challenged conclusion of law was
insufficient to preserve the specific legal issue and it was therefore waived on appeal.
Id. at 15-16, 2021 WL 2644493, at *7. In this regard, a party’s failure to appeal an
issue with the requisite specificity cannot be cured by addressing the issue in its
brief. McGaffin v. Workers’ Comp. Appeal Bd. (Manatron, Inc.), 903 A.2d 94, 102
(Pa. Cmwlth. 2006); see also Matticks, 872 A.2d at 202.
As these cases illustrate, an appeal to the Board that enumerates a
WCJ’s challenged findings of fact and asserts that they are not supported by
substantial evidence will be sufficient to preserve those issues. However, to the
extent a party seeks to raise legal issues to the Board but only lists the challenged
conclusions of law without also specifying the legal basis for appeal in its
documentation, those claims will be deemed waived.
Here, Claimant’s appeal to the Board states that numerous findings of
fact, primarily pertaining to Claimant’s and Employer’s medical experts’ testimony
and to the WCJ’s related credibility determinations, were not supported by
substantial evidence. Certified Record (C.R.) at 105. Pursuant to Jonathan
Sheppard Stables, these record-based factual challenges were sufficiently preserved
for appeal. 739 A.2d at 1089-91.

4
Unreported decisions of this Court issued after January 15, 2008, may be cited as
persuasive authority pursuant to Section 414(a) of the Commonwealth Court’s Internal Operating
Procedures, 210 Pa. Code § 69.414(a).
7
 Claimant also enumerated the WCJ’s unfavorable conclusions of law
for appeal, but she did not specify the nature of her legal issues or explain why the
listed conclusions amounted to legal error. C.R. at 105. This was insufficient, as
discussed in the cases above. Matticks, 872 A.2d at 202; Steglik, 755 A.2d at 74;
Jonathan Sheppard Stables, 739 A.2d at 1089 & n.5; see also W&W Contractors,
slip op. at 15-16, 2021 WL 2644493, at *7. We therefore conclude that the Board
did not err in denying Employer’s motion to quash, but limiting its review to whether
the WCJ’s determinations were supported by substantial evidence. Board’s Op. at
7. As such, we proceed to the merits on the same basis of review.

B. Claimant’s Non-Attendance at IME
The primary role of the WCJ in workers’ compensation matters is well
settled:

The WCJ is the fact finder, and it is solely for the WCJ
. . . to assess credibility and to resolve conflicts in the
evidence. Neither the Board nor this Court may reweigh
the evidence or the WCJ’s credibility determinations. In
addition, it is solely for the WCJ, as the factfinder, to
determine what weight to give to any evidence. . . . As
such, the WCJ may reject the testimony of any witness in
whole or in part, even if that testimony is uncontradicted.

Hawbaker v. Workers’ Comp. Appeal Bd. (Kriner’s Quality Roofing Servs. &
Uninsured Emp. Guar. Fund), 159 A.3d 61, 69 (Pa. Cmwlth. 2017) (internal
citations, quotations, and brackets omitted). “Determining the credibility of the
witnesses is the quintessential function of the fact finder . . . . It is not an exact
science, and the ultimate conclusion comprises far more than a tally sheet of its
various components.” Dorsey v. Workers’ Comp. Appeal Bd. (Crossing Constr.

8
Co.), 893 A.2d 191, 195-96 (Pa. Cmwlth. 2006) (declining to “dissect and analyze
each of the WCJ’s reasons for his credibility determination”).
“Substantial evidence” is such relevant evidence as a reasonable
person might accept as adequate to support a conclusion. See Waldameer Park, Inc.
v. Workers’ Comp. Appeal Bd. (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003).
In performing a substantial evidence analysis, we view the evidence in a light most
favorable to the party that prevailed before the WCJ. Id. In a substantial evidence
analysis where both parties present evidence, it is immaterial that there is evidence
in the record supporting a factual finding contrary to that made by the WCJ; rather,
the pertinent inquiry is whether there is any evidence that supports the WCJ’s factual
finding. Id. Mere speculation or conjecture is insufficient to support a factual
finding, but where there exists the ability to draw reasonable and logical inferences
from evidence that is presented, including testimony, a conclusion so derived will
be sufficient, even if it may not be the only possible conclusion. W. Penn Allegheny
Health Sys., Inc. v. Workers’ Comp. Appeal Bd. (Cochenour), 251 A.3d 467, 475
(Pa. Cmwlth. 2021) (citing Fitzpatrick v. Natter, 961 A.2d 1229, 1241-42 (Pa.
2008)).
Section 314 of the Act requires an injured employee to submit to an
IME paid for by the employer, including reasonable traveling expenses; an employer
may secure a WCJ’s order compelling the claimant to attend. 77 P.S. § 651. Failure
to appear for an IME without a reasonable excuse, which is the claimant’s burden to
establish, will result in suspension of the claimant’s wage loss benefits until an IME
can occur. Id. As the factfinder, the WCJ decides whether a claimant’s excuse for
non-attendance is reasonable, and we will not disturb that conclusion absent an abuse

9
of discretion. Wolfe v. Workmen’s Comp. Appeal Bd. (Edgewater Steel Co.), 636
A.2d 1293, 1298 (Pa. Cmwlth. 1994).
Claimant avers that her actions the day of the scheduled IME should
have been viewed by the WCJ as a good faith effort and a reasonable excuse for
failing to attend the IME. Claimant’s Br. at 16-18. Employer responds that the
WCJ’s refusal to do so was supported by substantial evidence of record. Employer’s
Br. at 17-18.
The record supports the WCJ’s determination that Claimant did not
provide a reasonable excuse for her failure to attend the IME. Claimant’s affidavit
stated that her attorney’s office gave her an address in Lemoyne and her caregiver-
driver Shannon Fields printed directions to that address. C.R. at 441. They arrived
on time for the scheduled IME but were told they were not in the system for an
appointment. Id. at 442. They were given another address for Dr. Beutler in
Mechanicsburg, which was also incorrect. Id. They were finally given the correct
address in Harrisburg, but by the time they arrived, nearly three hours after the
appointment time, Dr. Beutler had left for the day. Id. They tried calling Claimant’s
counsel several times but were unsuccessful. Id. Ms. Fields provided an affidavit
with similar assertions. Id. at 465-67.
The record also includes an affidavit from Employer’s IME vendor
(IMX) stating that an appointment letter with the correct Harrisburg address (which
is also of record) was sent to Claimant and her counsel and the address was
confirmed with counsel’s office prior to the IME date; the affidavit adds that IMX
does not conduct IMEs in Lemoyne or Mechanicsburg. Id. at 551-54. At a
September 11, 2017, hearing, Claimant’s counsel acknowledged on the record that

10
the WCJ’s order and the IMX letter gave the correct address to Claimant before the
date of the IME. C.R. at 212-14.
The WCJ concluded that Claimant failed to establish that her excuse
for non-attendance was reasonable:

The WCJ’s 8/4/17 decision directing Claimant to attend
the IME with Dr. Beutler clearly identified the time, place,
and address of the IME. The WCJ decision was sent to
and received by Claimant and her counsel. The 5/25/17
IMX scheduling letter that was sent to Claimant and her
counsel set forth the time, place, and address of the IME.
The WCJ decision gave Claimant the opportunity to have
[Employer] provide transportation to and from the IME.
Claimant chose not to avail herself of this opportunity to
have travel provided to her and Claimant assumed
personal responsibility for attending the IME. The WCJ
finds that fully adequate notice of the time, place, and
address of the IME and the opportunity to have
[Employer] provide transportation to attend the IME were
given to Claimant and Claimant failed in her responsibility
to attend the IME through her own fault.

WCJ Op. at 33; R.R. “A.”
Claimant does not dispute that the WCJ’s IME order and IMX’s letter
advised both her and her counsel of the correct address or that she had the
opportunity for Employer to transport her to the IME but chose instead to be
personally responsible for her attendance. Therefore, the WCJ’s conclusion that
Claimant did not provide a reasonable excuse for her non-attendance and to suspend
her wage loss benefits until she attended an IME on November 30, 2017, is supported
by substantial evidence of record. The WCJ, therefore, did not abuse his discretion
in so holding, and the Board did not err in affirming on this issue.

C. Claimant’s Access to Opioid Pain Medication

11
 Pursuant to Section 306 of the Act, the employer bears the burden in
UR proceedings to establish the reasonableness and necessity of an injured worker’s
medical treatment. 77 P.S. § 531(6); Topps Chewing Gum v. Workers’ Comp.
Appeal Bd. (Wickizer), 710 A.2d 1256, 1258 (Pa. Cmwlth. 1998). Either party may
request review, which is conducted by a medical professional in the same field as
that of the provider under review. 77 P.S. § 531(6)(i). The reviewer issues a report
which may then be appealed to the WCJ, who considers the report but is not bound
by it. 34 Pa. Code § 127.556. Treatment may be reasonable and necessary even if
it provides solely palliative relief and does not cure the underlying injury. Ryndycz
v. Workers’ Comp. Appeal Bd. (White Eng’g), 936 A.2d 146, 151-52 & n.4 (Pa.
Cmwlth. 2007). However, the WCJ may find palliative treatment unreasonable and
unnecessary where it is shown to be of little value due to the passage of time or other
considerations. Howrie v. Workers’ Comp. Appeal Bd. (CMC Equip. Rental), 879
A.2d 820, 822-23 (Pa. Cmwlth. 2005).
In Fanning v. Workers’ Compensation Appeal Board (Lower Merion
School District) (Pa. Cmwlth., No. 992 C.D. 2018, filed May 2, 2019), 2019 WL
2400487 (unreported), the WCJ found the claimant’s ongoing use of opioids for pain
unreasonable and unnecessary. Id., slip op. at 10, 2019 WL 2400487, at *4. We
affirmed, noting:

Given the change in the way these medications are being
used in the medical community, as reflected in Dr. Pharo’s
observation of the current American Medical Association
guidelines for those medications, and Dr. Cicuto’s
indication that there has “been a significant change in the
use of opioids in chronic pain management,” it is not
unreasonable for an employer to question the ongoing,
long term prescription of opioids to claimants. As we
stated in Troutman [v. Workers’ Compensation Appeal
Board (Norristown Ford) (Pa. Cmwlth., No. 724 C.D.

12
 2014, filed April 10, 2015), 2015 WL 5436751
(unreported)], “it [is] not unreasonable for [the employer]
to have questioned the ongoing utility of the treatments, as
[the employer] would ultimately be liable for any potential
negative consequences that could occur.”

Id., slip op. at 16-17, 2019 WL 2400487, at *9. Likewise, in Bedford Somerset
MHMR v. Workers’ Compensation Appeal Board (Turner), 51 A.3d 267 (Pa.
Cmwlth. 2012), we affirmed the WCJ’s determination that the claimant’s ongoing
use of opioids was neither reasonable nor necessary because the physical and
psychological risks of opioids, given their highly addictive nature, outweighed the
palliative benefits the claimant received from them. Id. at 274-75 (citing Sweigart
v. Workers’ Comp. Appeal Bd. (Burnham Corp.), 920 A.2d 962 (Pa. Cmwlth. 2007)).
If, however, a claimant can present rebuttal medical evidence that ongoing opioid
treatment is reasonable and necessary, the treatment may be upheld so long as the
record evidence supports that conclusion. Loc, Inc. v. Workers’ Comp. Appeal Bd.
(Graham), 936 A.2d 1213, 1216 (Pa. Cmwlth. 2007) (noting WCJ’s conclusion that
the claimant’s treating doctor, who prescribed the opioids, was credible and in the
best position to monitor the claimant’s condition and any ongoing effects).
Here, Claimant argues that the WCJ’s determination that Dr.
Greenberg’s treatment was not reasonable or necessary, which resulted in Employer
no longer having to pay for Claimant’s opioid prescriptions, was not supported by
substantial evidence and that a more reasonable disposition would have been to craft
an order enabling Claimant to wean off her medications. Claimant’s Br. at 19-20.
Employer responds that the WCJ’s decision was based on reasonable credibility
determinations in favor of Employer’s medical experts, Dr. Beutler and Dr. Clark,
who testified that Claimant should no longer be on opioids and recommended an in-
patient rehabilitation program at Employer’s expense. Employer’s Br. at 19-24.

13
 The record includes the UR report upon which Employer based its
petition, which concluded that Dr. Greenberg’s treatment was partially reasonable
and necessary as of May 24, 2017, and ongoing. C.R. at 537-40. The report would
approve Claimant’s ongoing daily use of Percocet or Valium, but not both, because
they are dangerous in combination. Id. The report would not approve her ongoing
daily use of Hydrocodone liquid because it is also risky in combination with
Claimant’s other medications. Id.
Claimant testified on November 9, 2017, before the WCJ. She took
two Percocet every four hours for pain and had been on it since 1994-95. C.R. at
258, 275 & 292. She also took a Hydrocodone liquid. Id. She took Valium as
needed for tremors and muscle relaxation. Id. at 264 & 274. Without her
medications, she believed she would sustain severe pain, swelling, and
inflammation. Id. at 259.
Claimant testified before the WCJ again on December 21, 2018. She
stated she felt worse than when she testified the previous year. C.R. at 372. She
acknowledged that surveillance video taken by Employer made her look functional
but explained that the bags she is seen carrying in the video were just bottled drinks
and tissues that she needed to carry in bags because her hands were weak. Id. at
373-74. Dr. Greenberg, whom she had been seeing for years, sold his practice in
late 2017 (he died shortly thereafter) and Claimant claimed that her new doctors
declined to continue her prescriptions because Employer refused to pay for them.
Id. at 380-83 & 414. She had not been able to take either Percocet or Hydrocodone
since December 2017. Id. She denied drug-seeking behavior, misuse of her
medications, insurance fraud, and personal conduct that led her new doctors to
discharge her from their care. Id. at 387-88, 394, 401 & 404.

14
 Claimant stated that she went to the emergency room (ER) in February
2018 due to reactions from not having regular access to her opioid medications since
December 2017. C.R. at 391. She acknowledged, however, that she tested positive
for opioids at that time and explained that she still had medications left over after
her last prescription was filled in December 2017. Id. at 399-400. She went to the
ER again for similar reasons in March 2018 and told doctors that she was not on any
medication at that time; however, she acknowledged a positive test for Oxycodone
at that visit. Id. at 400-03 & 413-14. She denied that she is addicted to opioids, that
her family asked her to go to a drug rehabilitation program, or that she was advised
by doctors during a subsequent June 2018 hospitalization to enter a program. Id. at
411-13. She maintains she is not currently on opioids. Id. at 417.
Dr. Beutler testified in a deposition that he is a board-certified
neurosurgeon. C.R. at 565. He saw Claimant for an IME on November 30, 2017,
after the August 2017 IME did not occur. Id. at 569. Claimant presented with
persistent neck pain, numbness, and pressure ranging from her head to her shoulders
since the 1993 injury. Id. at 571-72. She described bilateral upper extremity and
hand pain and weakness but no radicular or radiating symptoms. Id. at 572.
Dr. Beutler stated that during the IME, he observed what he believed to
be symptom magnification in that she reported dramatic pain, weakness, and
sensitivity in her arms and shoulders, but had no difficulty getting into her coat after
the IME using similar movements as he asked of her during the IME. Id. at 580-81.
Her responses during the sensory part of the IME were also anatomically
inconsistent with her accepted injuries. Id. at 581-83. He noted that her reflexes
were normal and that he detected no muscle spasms, both of which are objective
signs that a patient cannot manipulate. Id. at 583-84. Her reported condition and

15
reactions during the IME also did not correlate with her most recent diagnostic
imaging results. Id. at 588-89. Likewise, he viewed her surveillance video and
found her largely functional on it, including using her neck and shoulders to hold
her cell phone, which was inconsistent with her subjective reactions during the IME.
Id. at 597-99.
Dr. Beutler did not believe that Claimant was fully recovered from her
work-related injuries, but nonetheless opined that the opioids she had been taking
since the mid-1990s are no longer reasonable and necessary for her in light of current
views that long-term use of narcotic pain medication is a source of physical and
psychological dependence. C.R. at 590-92. His review of her medical records also
indicated instances of drug-seeking behavior, including threatening her doctors with
lawsuits if they did not fill her prescriptions. Id. at 593-94. Dr. Beutler
recommended that Claimant enter an in-patient program to wean her off opioid
medications and replace them with non-narcotic medications and other therapies for
pain management. Id. at 605.
Dr. Clark testified in a deposition. He is currently Chair of the
Department of Psychiatry and Behavioral Health at Inova Fairfax Medical Center in
Virginia and until recently served in a similar position at Johns Hopkins, where he
was director of the in-patient drug rehabilitation and pain management program.
C.R. at 654-55 & 660-61. He is board certified in psychiatry and licensed in
Maryland and Virginia, but not Pennsylvania. Id. at 655-56. On Employer’s request,
he reviewed Claimant’s medical records and prepared a report. Id. at 662.
Dr. Clark concluded that while he agreed with Claimant’s current
diagnosis, none of Claimant’s current treatments, particularly extensive narcotic
medications, were reasonable and necessary and that she would be a good candidate

16
for an in-patient program like the one at Johns Hopkins. C.R. at 666-67 & 681-84.
Like Dr. Beutler, Dr. Clark spoke of the evolution in perceptions regarding narcotic
medications since the 1990s and the current view that long-term use of opioids
presents great physical and psychological risks of dependence and addiction. Id. at
668-72. Based on his view of her surveillance video, he believed she is functional
and might be taking her medications at this point for the wrong reasons, although he
acknowledged that when she was filmed, she may have recently taken her
medication and therefore was more functional than she might have been without it.
Id. at 672 & 687-90. An in-patient program would have team-directed care for her
drug rehabilitation and pain management, including condition-specific physical
therapy, and would be more beneficial than merely stopping her medications without
the support of an in-patient program. Id. at 674-80 & 695.
In response to Employer’s medical evidence, Claimant attempted to
submit transcripts of Dr. Greenberg’s 2014 and 2015 depositions in prior UR
litigation since Dr. Greenberg was no longer alive to testify. C.R. at 361-62.
Another former treating doctor had relocated out of state and was also unavailable
to testify. Id. at 362. Upon Employer’s objection, the WCJ declined to allow the
transcripts in except for purposes of appeal by Claimant. Id. at 364. Claimant did
not appeal the WCJ’s evidentiary ruling to the Board; therefore, the record contains
no rebuttal medical evidence on Claimant’s behalf.
The WCJ found Dr. Beutler and Dr. Clark, who both testified that
Claimant should be taken off all opioids, credible in light of their backgrounds in
neurosurgery and pain management. WCJ Op. at 33. The WCJ also credited Dr.
Beutler and Dr. Clark over the UR reviewer, who would have approved ongoing use
of Percocet or Valium, but not both, because their credentials outweigh those of the

17
reviewer, who was certified in family practice.5 Id. The WCJ therefore found
Employer had met its UR burden of proof and found Claimant’s ongoing use of
opioids neither reasonable nor necessary. Id. & WCJ Order.
We agree. As finder of fact, the WCJ is tasked with the primary roles
of determining the credibility of witnesses and weighing the evidence, neither of
which this Court may usurp. See Hawbaker, 159 A.3d at 61. Here, moreover, all
three medical witnesses concluded that Claimant’s ongoing use of opioids was not
beneficial for her – even the UR reviewer, who would have curtailed rather than
eliminated Claimant’s opioid use. Dr. Beutler and Dr. Clark both explained the
evolution since the 1990s when opioids entered wide distribution to the current view
that their long-term use creates risks of dependence and addiction that far outweigh
their palliative benefits. C.R. at 590-92 & 668-72. Claimant’s argument that the
WCJ erred by denying payment for Claimant’s medications without giving her the
opportunity to be weaned off them is also refuted by the record, in that Dr. Beutler
and Dr. Clark both recommended that Claimant enter an in-patient program for
opioid rehabilitation and pain management, which would be paid for by Employer.
Id. at 605-07 & 675-78. At any rate, the standard of review is whether a factfinder’s
determination is supported by substantial evidence of record, not whether another
conclusion could also have been made. Waldameer Park, 819 A.2d at 168. Because
the WCJ’s determination that Claimant’s ongoing use of opioids is no longer
reasonable or necessary is supported by substantial evidence of record, the WCJ did
not abuse his discretion in so holding, and the Board did not err in affirming on this
issue.

5
As noted, the UR reviewer must practice in the same field of medicine as that of the
provider under review. 77 P.S. § 531(6)(i). As Dr. Greenberg was a family practice doctor, the
reviewer was therefore appropriate for UR purposes.

18
 D. WCJ’s Order Requiring Drug Testing
Section 314 of the Act authorizes a WCJ to order a claimant to undergo
a “physical examination,” which may include an IME or non-invasive diagnostic
testing. 77 P.S. § 651; Coleman v. Workers’ Comp. Appeal Bd. (Indiana Hosp.),
842 A.2d 349, 354-56 (Pa. 2002). After an initial examination, “upon petition of the
employer,” the WCJ may “order the employe to submit himself to such further
physical examinations or expert interviews as the [WCJ] shall deem reasonable and
necessary, at such times and places and by such health care provider or other expert
as the [WCJ] may designate[.]”6 77 P.S. § 651.
Drug screening in the UR context is usually aligned with and approved
for a claimant’s ongoing use of opioids to ensure that the claimant is using them
properly and subject to medical supervision. Rogele, Inc. v. Workers’ Comp. Appeal
Bd. (Hall), 198 A.3d 1195, 1202 (Pa. Cmwlth. 2018). Here, however, the UR report

6
The usual vehicle for an employer to seek an examination is a petition to compel. Here,
however, Employer did not seek or ask the WCJ to order drug testing of Claimant. Instead,
Employer’s goal was to convince the WCJ to order Claimant to enter an in-patient program to
wean off opioids. As such, Employer filed a petition to suspend benefits based on Claimant’s
alleged refusal to undergo such a program, and a petition to review medical treatment, which is
generally filed when an employer seeks to challenge whether treatment is causally related to the
work-related injury. Bloom v. Workmen’s Comp. Appeal Bd. (Keystone Pretzel Bakery), 677 A.2d
1314, 1317-18 (Pa. Cmwlth. 1996).

However, strict pleading is not required in workers’ compensation and a WCJ may
generally award such relief as is supported by evidence so long as the affected party is not taken
by surprise or prejudiced by the nature of the remedy. See Frontini v. Workers’ Comp. Appeal Bd.
(Parks Moving & Storage), 702 A.2d 8, 12-13 (Pa. Cmwlth. 1997) (termination of benefits upheld
where claimant knew employer intended to contest duration of injury even though employer did
not file a termination petition). Here, Claimant does not argue that she was caught off guard or
prejudiced by the WCJ’s order that she undergo periodic testing. Therefore, if the record evidence
supports the disposition, the WCJ did not abuse his discretion in construing Employer’s petitions
as a petition to compel periodic drug screening. See WCJ Op. at 37.

19
does not indicate that Dr. Greenberg was conducting routine opioid testing of
Claimant as part of her treatment regimen; and the question of whether a WCJ may
order drug testing outside of an approved medical treatment plan using opioid
medication, apparently solely for the purpose of monitoring whether the claimant
seeks opioids from another health care provider or source, appears to be one of first
impression. See C.R. at 530-42. However, to the extent a claimant can be weaned
off opioids and increase his or her prospects for a return to more normal functioning
and perhaps some ability to again be employed, an in-patient program has been
found reasonable treatment such that its refusal may be the basis for suspension of
benefits. See Bereznicki v. Workers’ Comp. Appeal Bd. (Eat ‘N Park Hosp. Grp.),
989 A.2d 46, 48 (Pa. Cmwlth. 2009) (affirming WCJ’s suspension of benefits when
claimant refused to undergo detoxification program).
Claimant argues that since the WCJ effectively terminated her access
to opioids by granting Employer’s UR petition concerning Dr. Greenberg’s
treatment, the WCJ’s order that she submit to drug testing is irrelevant and
unreasonably intrusive. Claimant’s Br. at 21-22. Employer responds that in light of
record evidence that Claimant has shown drug-seeking behavior and tested positive
for opioids even after she stated she was no longer taking them, the WCJ’s order of
regular screening was within his discretion and supported by the record. Employer’s
Br. at 24-26. Employer adds that even though it may no longer be paying for
Claimant’s opioid prescriptions from Dr. Greenberg, drug screening to ensure that
Claimant remains off opioids is in Claimant’s best interests, given the high risks of
ongoing use. Id. at 26.
Claimant’s argument that the WCJ’s order of ongoing drug testing is
irrelevant and unreasonable is essentially legal in nature, although dependent on the

20
facts as found by the WCJ. As noted above, however, Claimant failed to set out and
preserve this specific legal argument to the Board beyond listing the corresponding
conclusion of law in the WCJ’s decision. See C.R. at 105. Therefore, to the extent
Claimant asks this Court to review this aspect of the WCJ’s determinations as a
matter of law, any such issues are waived for purposes of this appeal. See McGaffin,
903 A.2d at 101-02; Matticks, 872 A.2d at 201-02; Jonathan Sheppard Stables, 739
A.2d at 1089-91. Our review is therefore limited to whether the WCJ’s drug testing
order is supported by substantial evidence of record.
Claimant testified in December 2018 that she was no longer on opioids
since she could not get prescriptions from her new doctors; she denied abusing them,
being addicted to them, or exhibiting drug-seeking behavior. C.R. at 380-82, 388,
401, 411, 413 & 417. She acknowledged, however, that she had tested positive for
opioids at ER visits post-dating the time when she could no longer get opioids from
Dr. Greenberg. Id. at 399 & 413. She denied being asked or refusing to go to an in-
patient rehabilitation program. Id. at 403 & 411-12. Dr. Beutler testified that the
current standard of care does not support Claimant’s extensive daily use of multiple
opioid medications due to their physical and psychological addiction risks; he stated
that getting Claimant off of opioids is the “number one thing that has to be pursued,
if she’s going to maintain any degree of health[.]” Id. at 590-93. His review of
Claimant’s records revealed instances of drug-seeking behavior in which she
threatened doctors with litigation if they did not continue prescribing her opioids.
Id. at 594. He recommended an in-patient program for rehabilitation and non-opioid
pain management. Id. at 603-07.
Like Dr. Beutler, Dr. Clark stated that based on his experience in pain
management, the evolving standard of care for use of opioids, and his review of

21
Claimant’s records, she is a typical candidate for a comprehensive in-patient
program like the one he supervised at Johns Hopkins; these programs have low risks
and proven health benefits. C.R. at 667-68 & 677-80. He found it likely “that she
is taking these medicines for, potentially, the wrong reasons and not getting the kind
of benefit that you would expect her to get, and that she really should be tapered off
of them.” Id. at 672. Dr. Beutler and Dr. Clark both believed that Claimant needs
to be off opioids altogether and did not agree with the UR reviewer that Claimant
could continue on either Percocet or Valium, but not both. Id. at 602 & 684.
After the close of evidence, the WCJ concluded that an in-patient
program as recommended by Dr. Beutler and Dr. Clark would be reasonable
compared with continued use by Claimant of opioids in the same amounts she had
been taking for years. WCJ Op. at 35 & 37. The WCJ gave some credit to
Claimant’s testimony in December 2018 that she had not been able to get opioids in
the same volume after late 2017, when Dr. Greenberg no longer was available to
prescribe them for her. Id. However, based on Claimant’s positive test for opioids
in March 2018 after she stated she was no longer able to get them from a treating
doctor, the WCJ concluded that Claimant’s December 2018 testimony that she was
completely free of opioids was not fully credible. Id.
Given the WCJ’s conclusion that Claimant was possibly still on opioids
in 2018, albeit less than before, the WCJ declined to suspend her wage loss benefits
for not entering an in-patient program “at this time.”7 WCJ Op. at 37. However, the
WCJ credited the opinions of Dr. Beutler and Dr. Clark and determined that to leave
Claimant in a position where she might be able to access and use opioids from

7
Had the WCJ decided to suspend Claimant’s ongoing wage loss benefits based on a
finding that she refused the reasonable treatment of an in-patient program, this Court has affirmed
such determinations in the past. See Bereznicki, 989 A.2d at 48.

22
another provider or source8 posed health risks, including mortality. Id. at 35-37.
Therefore, to ensure Claimant did not resume her daily use of large amounts of
opioids, the WCJ concluded that drug testing every sixty days at Employer’s expense
was warranted, and if Claimant returns a positive test, Employer may ask Claimant
to enter an in-patient program and seek immediate suspension of her benefits if she
refuses. Id. at 38. As noted, the WCJ stated that he was treating Employer’s
suspension and medical review petitions as a petition to compel drug testing pursuant
to Section 314 of the Act. Id. at 37.
Here, the WCJ considered Claimant’s in-person testimony and deduced
that while she had already undergone withdrawal due to lack of consistent access to
prescriptions, her subsequent positive tests indicated limits to her credibility on the
issue of her opioid usage. The testimony of Dr. Beutler and Dr. Clark highlighted
the need for Claimant to be off opioids, preferably but not necessarily through an in-
person program. The WCJ’s order provides a means to accomplish that goal and is
supported by the record evidence. We therefore find the WCJ did not abuse his
discretion in so holding and the Board did not err in affirming on this issue.9

8
UR is specific to the provider under review and not the treatment. Therefore, were
Claimant to find another provider willing to prescribe opioids, Employer would not be able to rely
on the UR concerning Dr. Greenberg to contest Claimant’s ongoing use of such medications.
Schenck v. Workers’ Comp. Appeal Bd. (Ford Elec.), 937 A.2d 1156, 1161-62 (Pa. Cmwlth. 2007).
9
Although Claimant waived her legal argument asserting that the WCJ’s order is
unreasonable by failing to specify it in her appeal documentation, any such argument is meritless.
The WCJ’s sua sponte ordering of periodic drug testing as a condition of continued benefits is a
considered compromise between the drastic approach of ordering Claimant directly to an in-patient
rehabilitation program on pain of losing her benefits and the unwelcome option of allowing her to
resume her longtime extensive opioid use if she finds a provider willing to do so. In that sense,
although the WCJ’s order is not specifically authorized by the Act, it is an equitable remedy of the
kind this Court has found may be applied in workers’ compensation matters. See Kiebler v.
Workers’ Comp. Appeal Bd. (Specialty Tire of Am.), 738 A.2d 510, 516 (Pa. Cmwlth. 1999) (“We
similarly sanctioned the use of equitable remedies and defenses in workers’ compensation

23
 III. Conclusion
Based on the facts and evidence in this case, we affirm the WCJ’s
decision and order.

__________________________________
CHRISTINE FIZZANO CANNON, Judge

proceedings, despite the absence of any provision in the Act specifically authorizing such a
remedy, in [Roadway Express, Inc. v. Workmen’s Compensation Appeal Board (Allen), 618 A.2d
1224 (Pa. Cmwlth. 1992)] (doctrine of laches applies in workers’ compensation proceedings[.]”)).

24
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joan M. Rotegliano, : CASES CONSOLIDATED
Petitioner :
:
v. :
:
Clinton Hospital Corporation (Workers’ :
Compensation Appeal Board), : No. 616 C.D. 2021
Respondent :
:
:
Clinton Hospital Corp., :
Petitioner :
:
v. :
:
Joan M. Rotegliano (Workers’ :
Compensation Appeal Board), : No. 628 C.D. 2021
Respondent :

ORDER

AND NOW, this 12th day of May, 2022, the May 19, 2021, decision and
order of the Workers’ Compensation Judge is AFFIRMED.

__________________________________
CHRISTINE FIZZANO CANNON, Judge