Ryndycz v. Workers' Compensation Appeal Board

DISSENTING OPINION BY

Judge LEAVITT.

Respectfully, I dissent. Dr. Cavallo’s peer review of Claimant’s course of chiropractic treatment found this treatment to be neither reasonable nor necessary. Indeed, Dr. Cavallo opined that continued application of this treatment could harm Claimant. The WCJ and Board affirmed. To reach a contrary conclusion, the majority accepts Claimant’s legal gymnastics, which cannot withstand close examination.

Claimant filed claim and penalty petitions asserting that his June 18, 2001, back injury was work-related. Employer denied the allegations of both petitions, and the contest was decided in Claimant’s fa*153vor by WCJ McManus in a June 19, 2003, decision. Therein, WCJ McManus noted that Employer did not issue a Notice of Compensation Payable or a Notice of Compensation Denial, but Employer did move Claimant to light-duty work and paid his medical bills. WCJ McManus expressed the view that “Accordingly, the underlying action is a termination case not an original Claim Petition.” McManus Decision, Finding of Fact No. 4; Reproduced Record at 61.1 Employer appealed from WCJ McManus’s order and this Court affirmed, with no mention of a termination proceeding. White Engineering v. Workers’ Compensation Appeal Board (Ryndycz), (Pa.Cmwlth. Nos. 862, 2113 C.D. 2004, filed June 20, 2005).

The majority considers WCJ McManus’s factual characterization of the claim petition as a “termination case” to be a “ruling” that was binding on WCJ Desimone in the instant utilization review proceeding. I disagree. At best, the WCJ’s factual finding was dictum. It did not, and could not, transform the proceeding from a claim and penalty proceeding into a termination proceeding, particularly where Employer did not accept liability for Claimant’s injury. In any case, a reading of the entire decision reveals that WCJ McManus was considering claim and penalty petitions; never shifted the burden of proof from Claimant; and, critically, specified in his Order that he was granting Claimant’s claim and penalty petitions. Therefore, the grant of the claim petition was WCJ McManus’s “ruling” in the case; he did not deny a termination petition.

In his decision, WCJ McManus found that Dr. Warner’s bills totaled $7,747 and that this treatment was causally related to Claimant’s work injury. The WCJ also ordered Employer to pay for chiropractic services “in accordance with the Workers’ Compensation Act,”2 i.e., reasonable and necessary treatments. Employer then submitted all of Dr. Warner’s bills for utilization review. Claimant’s appeal to this Court focuses on if and when Employer was permitted to obtain utilization review of Dr. Warner’s treatment.

The majority acknowledges that Employer was permitted to seek utilization review, but only with respect to Dr. Warner’s bills for treatment after June 17, 2003, i.e., within 30 days prior to the utilization review request. However, this determination is based on the majority’s erroneous conclusion that the underlying proceeding before WCJ McManus was a termination case. The law regarding claim petition proceedings is different. Under Section 127.404(b) of the Medical Cost Containment Regulations, when an employer contests liability for a claim, the 30 days that an employer has in order to request retrospective utilization review of medical treatment is tolled pending a determination of liability.3 In this case, Em*154ployer contested the claim petition and, as a result, the 30 days during which Employer could request retrospective review of medical treatment was tolled pending the judicial determination of liability. Employer’s liability for payment of Claimant’s medical bills was not established until WCJ McManus rendered his decision granting the claim petition. At that point, Employer was permitted by law to submit all of Dr. Warner’s treatment from July 31, 2002, and ongoing to utilization review within 30 days of WCJ McManus’s decision, and it properly did so.

Turning to the majority’s conclusion that WCJ Desimone failed to address the evidence of the palliative effect of Dr. Warner’s treatment, again I disagree. This Court has explained that “medical treatment may be reasonable and necessary even if the treatment does not cure the underlying injury, so long as it acts to relieve pain and treats the symptomatolo-gy, i.e., if it is palliative in nature.” Trafalgar House v. Workers’ Compensation Appeal Board (Green), 784 A.2d 232, 235 (Pa.Cmwlth.2001). However, when a WCJ accepts the opinion of the utilization review doctor over the claimant’s evidence that the treatment in question relieves his pain, this Court may not disturb that credibility determination on appeal. Howrie v. Workers’ Compensation Appeal Board (CMC Equipment Rental), 879 A.2d 820, 823 (Pa.Cmwlth.2005).

Here, the WCJ expressly addressed the palliative nature of Dr. Warner’s care. Indeed, the WCJ acknowledged that the objectives of Dr. Warner’s treatment were to reduce pain and restore function. However, the WCJ found that the treatment was not accomplishing those objectives because Claimant continues to experience severe pain and to suffer severe functional limitations on a daily basis. The WCJ pointed out that eight days after he testified, Claimant was unable to complete an examination with another doctor because he could not or would not sit or lie on an examination table and had difficulty walking ten feet. The WCJ specifically found Dr. Warner’s testimony about his treatment of Claimant as not credible for the stated reason that Dr. Warner “did not consider and address the ineffectiveness of his treatment.” Desimone Decision, 9/13/04, Finding of Fact No. 10.4

The WCJ instead chose to accept the opinion of Dr. Cavallo, the peer review physician appointed by the URO. Dr. Ca-vallo stated that 44 treatments of electrical stimulation and manual manipulation between July 31, 2002, and December 2, 2002, were appropriate.5 After that point, this treatment ceased to be reasonable and necessary. Indeed, Dr. Cavallo explained that a patient with chronic pain should not be treated with procedures used to assist patients with acute pain; otherwise the treatment actually exacerbates the situation. WCJ Desimone considered Claimant’s evidence that the treatment had a palliative effect, but he rejected it. In short, the WCJ’s decision hinged on a credibility determination that is binding on *155appeal.6 Howrie, 879 A.2d at 823.

I would affirm the Board and the WCJ.

. The reason for this finding is unclear. WCJ McManus cited Williams v. Workmen' s Compensation Appeal Board (AT & T Technologies, Inc.), 144 Pa.Cmwlth.297, 601 A.2d 473 (1991), which holds that in some cases, on some issues, the burden of proof may shift from a claimant to an employer. However, Williams does not hold that a contested claim petition can morph into a termination proceeding.

. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2626.

.Section 127.404(b) of the Medical Cost Containment Regulations provides:

If an insurer or employer seeks retrospective review of treatment, the request for UR shall be filed within 30 days of the receipt of the bill and medical report for the treatment at issue. Failure to comply with the 30-day time period shall result in a waiver of retrospective review. If the insurer is contesting liability for the underlying claim, the 30 days in which to request retrospective UR is tolled pending an acceptance or determination of liability.

*15434 Pa.Code § 127.404(b) (emphasis added).

. In his December 7, 2005, decision after remand, WCJ Desimone incorporated all of the findings of fact from his September 13, 2004, decision. Desimone Decision, 12/7/05, Finding of Fact No. 6.

. Instead, Claimant has received hundreds of such manual manipulations and electrical *155stimulations from Dr. Warner.

. The WCJ has complete authority over questions of credibility and conflicting medical evidence. Sherrod v. Workmen’s Compensation Appeal Board (Thoroughgood, Inc.), 666 A.2d 383, 385 (Pa.Cmwlth.1995).