No. 844 CD 2014

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert Tucker,
Petitioner
v.
Workers’ Compensation Appeal
Board (Ecolaire Corporation),
Respondent
BEFORE:
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No. 844 C.D. 2014
Submitted: October 24, 2014
HONORABLE DAN PELLEGRINI, President Judge
HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE LEAVITT
FILED: December 19, 2014
Robert Tucker (Claimant) petitions for this Court’s review of an
adjudication by the Workers’ Compensation Appeal Board (Board) reversing, in
part, the Workers’ Compensation Judge’s (WCJ) decision to set aside a utilization
review determination. In doing so, the Board held that certain factual findings of
the WCJ were not supported by substantial evidence. We reverse.
On February 9, 1980, Claimant suffered a lower back injury while
working at Ecolaire Corporation (Employer). Following two surgeries in 1982 and
1988, Claimant began treatment with his primary care physician, Louis Totani,
M.D., who prescribed Percocet, Ambien, Ativan and occasionally Flexeril. In
2011, Joseph Cesanek, M.D., took over Dr. Totani’s practice and began treating
Claimant. Dr. Cesanek continued Claimant’s medication regimen.
On February 15, 2012, Employer filed a utilization review request
pursuant to Section 306(f.1)(6) of the Workers’ Compensation Act (Act), 77 P.S.
§531(6).1 Specifically, Employer challenged the reasonableness and necessity of
Claimant’s office visits and Dr. Cesanek’s prescription of brand name rather than
generic medications.
The Bureau of Workers’ Compensation assigned the utilization review
to Lawrence Axelrod, M.D., of Uniontown Medical Rehabilitation P.C.
Dr.
Axelrod reviewed Dr. Cesanek’s treatment records from July 2011 to February
2012, which included dates of service and prescriptions. Dr. Axelrod concluded
that because Claimant’s subjective pain complaints have “persisted unabated for
years,” the prescribed medications were neither reasonable nor necessary.
Reproduced Record at 18a (R.R. ___).
Claimant challenged Dr. Axelrod’s determination with a petition for
review filed on May 9, 2012, and the WCJ conducted a de novo hearing. Claimant
testified, and he submitted a letter from Dr. Cesanek to support the reasonableness
of Claimant’s medication. In the letter, Dr. Cesanek explained that he assumed
Claimant’s care in 2012, when Dr. Totani retired. Dr. Cesanek went on to state, in
relevant part:
It was of my belief that I was taking over [Claimant’s] care of
his chronic pain, anxiety, and insomnia that has resulted from
his work injury. The plan which had been agreed upon prior to
my care, was to be monthly visits to monitor his status and
prescription medications, for maintenance of his pain control. I
was also informed he had been on brand necessary medications
for many years and this was agreed upon by his providers prior
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §531(6).
2
to my care of [Claimant]. Since I have assumed the care of
[Claimant], I understand his case has come under review again.
I find it quite interesting that when a new doctor assumes the
care of this patient, that his core plan would be reviewed again.
[Claimant’s] care plan has been working and I would not
change what has been helping him at this point. [Claimant] has
been doing well with his Percocet, Ativan, Ambian [sic] and
Flexeril and [I] would not recommend changing them or
substituting for them.
R.R. 11a.
Claimant also submitted a letter from his nephrologist, Robert Pursell,
M.D., regarding his treatment for chronic kidney disease unrelated to his work
injury. Dr. Pursell stated that “[Claimant] is on numerous medications, and from
my standpoint any medications concerning his kidney disease or hypertension
should definitely be brand and not generic.” R.R. 12a.
The WCJ rejected Dr. Axelrod’s opinion that Claimant’s prescription
regimen was not reasonable or necessary.2
The WCJ credited Dr. Cesanek’s
opinion that Claimant’s treatment should continue unchanged, finding his opinion
consistent with Claimant’s credible testimony. The WCJ held that Employer
“failed to offer expert medical evidence, herein found credible, [that] the
Claimant’s treatment by Dr. Cesanek is in any way unreasonable and
unnecessary.” R.R. 10a. Accordingly, the WCJ ordered Employer to continue to
2
The WCJ stated:
Dr. Axelrod’s opinions are not credible as he had only a tiny portion of the
Claimant’s medical records. He failed to assign any value to a reduction in pain
and he gave no credence whatsoever to the Claimant’s beneficial result from the
medications and the Claimant’s increase in symptoms when the medications were
not taken.
R.R. 9a.
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pay for Claimant’s treatments by Dr. Cesanek and for the brand name medications
prescribed.
On review, the Board affirmed the WCJ’s rejection of Dr. Axelrod’s
opinions as not credible, noting that it was the WCJ’s prerogative to do so given
Dr. Axelrod’s limited review of Claimant’s medical records. The Board reversed
the WCJ’s decision insofar as it ordered Employer to continue paying for
Claimant’s brand name medications. The Board found that the WCJ erred in
relying on Dr. Pursell’s recommendation that Claimant should receive brand name
medications because Dr. Pursell is treating Claimant for non-work-related kidney
disease. The Board noted that Dr. Cesanek did not provide an unequivocal opinion
that Claimant’s medications to treat his work injury should be brand name and not
generic, because “[h]e stated only that he ‘would not recommend changing or
substituting’” the medications. R.R. 4a-5a (emphasis original).
On appeal,3 Claimant argues that the Board erred by shifting the
burden of proof from Employer to him to establish that the medical treatment
under review is reasonable and necessary. We agree.
The utilization review process established by Act 44 of 19934 is the
exclusive way to challenge the reasonableness and necessity of a claimant’s
medical bills. County of Allegheny v. Workers’ Compensation Appeals Board
(Geisler), 875 A.2d 1222, 1226 (Pa. Cmwlth. 2005). Neither a WCJ nor the Board
has jurisdiction to determine the reasonableness of medical treatment unless and
3
Our review of the Board’s decision determines whether an error of law was committed,
constitutional rights were violated or whether necessary findings of fact are supported by
substantial evidence. County of Allegheny v. Workers’ Compensation Appeal Board (Geisler),
875 A.2d 1222, 1225 n.7 (Pa. Cmwlth. 2005).
4
Act of July 2, 1993, P.L. 190, as amended, effective August 31, 1993.
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until a report is issued and the Utilization Review Organization (URO) issues a
determination. Id. According to Section 306(f.1)(6)(iv) of the Act, 77 P.S. §
531(6)(iv), “if the health care provider, employer, employee or insurer disagrees
with the determination of the URO, he may within 30 days of the UROs
determination, seek review by a WCJ . . . [t]his hearing before the WCJ is a de
novo proceeding.” Geisler, 875 A.2d at 1227.
It is well settled that an employer seeking to change the status quo on
the payment of work-related medical expenses has the burden throughout the
utilization review process. The employer must defend a conclusion of the URO
that the challenged medical treatment is not reasonable or necessary. AT&T v.
Workers’ Compensation Appeal Board (DiNapoli), 816 A.2d 355, 360 (Pa.
Cmwlth. 2003). It is not necessary that the claimant present any evidence.
It is equally well settled that the WCJ has exclusive authority, as fact
finder, to determine credibility of witnesses and to weigh the evidence. Lehigh
County Vo-Tech School v. Workmen’s Compensation Appeal Board (Wolfe), 652
A.2d 797, 800 (Pa. 1995). The WCJ is free to accept or reject the expert testimony
of any witness, including a medical witness, in whole or in part.
Riggle v.
Workers’ Compensation Appeal Board (Precision Marshall Steel Company), 890
A.2d 50, 57 n.11 (Pa. Cmwlth. 2006).
Here, the WCJ rejected Dr. Axelrod’s opinions as not credible for the
stated reason that Dr. Axelrod reviewed only a small portion of Claimant’s medical
records and did not assign any value to the benefits Claimant experienced from the
medications prescribed by Dr. Cesanek.5 The Board expressly affirmed the WCJ’s
5
Notably, in a utilization review proceeding, the physician assigned by the Bureau to review a
treatment regimen reviews only those medical records chosen by the claimant’s treating
(Footnote continued on the next page . . .)
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rejection of Dr. Axelrod’s opinion, which was Employer’s only evidence in
support of the determination of the URO.
Thus, Employer was left with no
evidence to support its defense of the utilization review determination. In that
circumstance, the WCJ correctly granted Claimant’s petition for review, and the
Board erred in reversing, based on its assessment of Claimant’s expert evidence.
Accordingly, the Board’s order is reversed.
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MARY HANNAH LEAVITT, Judge
(continued . . .)
physician under review. Dr. Axelrod cannot be faulted for reviewing the small portion of
Claimant’s records because they were chosen by Claimant’s treating physician. Employer
appealed this issue to the Board, but it affirmed that part of the WCJ’s decision to allow
Claimant’s medication regimen to continue without addressing the issue. However, Employer
did not cross-appeal the Board’s affirmance of the WCJ on this point.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert Tucker,
Petitioner
v.
Workers’ Compensation Appeal
Board (Ecolaire Corporation),
Respondent
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No. 844 C.D. 2014
ORDER
AND NOW, this 19th day of December, 2014, the order of the
Workers’ Compensation Appeal Board dated April 22, 2014, in the abovecaptioned matter is REVERSED insofar as it reversed the Workers’ Compensation
Judge’s order granting Petitioner Robert Tucker’s Petition to Review Utilization
Review Determination.
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MARY HANNAH LEAVITT, Judge