Haslam v. Workers' Compensation Appeal Board (London Grove Communication)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas Haslam, :

Petitioner :

:

v. : No. 1655 C.D. 2016

: SUBMITTED: February 10, 2017

Workers’ Compensation Appeal :

Board (London Grove :

Communication), :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE JULIA K. HEARTHWAY, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY

JUDGE HEARTHWAY FILED: September 1, 2017

Thomas Haslam (Claimant) petitions for review of the September 9,

2016 order of the Workers’ Compensation Appeal Board (Board), which reversed

the decision of a workers’ compensation judge (WCJ). The Board granted the

petition of London Grove Communication (Employer) to review utilization review

(UR) determination and denied Claimant’s petition to review medical treatment

and/or billing (Medical petition). For the reasons set forth below, we reverse.

On February 16, 1998, Claimant was injured in the course and scope

of his employment with Employer when he fell off of a building and shattered his

right ankle, tibia, and fibula, and suffered a left calcaneus fracture, as well as

injuries to his neck and low back. Employer issued a notice of compensation

payable (NCP), accepting Claimant’s injury.1 A supplemental agreement was

entered into between the parties on January 29, 2001. The supplemental agreement

modified Claimant’s indemnity benefits as of October 24, 2000, due to Claimant’s

return to work with a loss of earnings. The injury information refers to Claimant’s

injury as “R & L Foot Fracture.” (Supp. Agrmt., at 1.) Thereafter, in 2008, the

parties entered into a compromise and release agreement (C&R Agreement) and

settled the indemnity portion of the case for $110,000.00.2

Thereafter, Employer filed a UR request, seeking review from January

6, 2014 and ongoing “on any and all compounded medication” provided by Evan

D. Frank, M.D. (UR request, at 1.) On February 19, 2014, the UR was assigned to

Administrative Reviewer Michael J. Drass, M.D. Dr. Drass performed the UR of

Claimant’s compounded medications from January 6, 2014, and prospectively, and

determined that they were reasonable and necessary expenses related to the

acknowledged work-injury.

On May 20, 2014, Employer filed the instant UR review petition,

challenging the UR determination of Dr. Drass. Employer argued that the

condition Claimant was being treated for by Dr. Frank, RSD/CRPS,3 was not

1

The NCP is not in the record, thus the injuries accepted by Employer in the NCP are unknown.

2

The copy of the C&R Agreement presented at the hearing was not dated or signed. However,

all parties agree to its content and admission into the record.

3

RSD, or reflex sympathetic dystrophy, is now referred to as CRPS, or complex regional pain

syndrome.

2

expressly accepted by Employer in the C&R Agreement. Thus, Employer asserted

that Dr. Drass’ UR determination was in error.

On May 30, 2014, Claimant filed the Medical petition alleging an

incorrect injury description and worsening of his condition. Claimant requested

recognition of the RSD/CRPS as being related to his February 16, 1998 work

injury and a determination regarding whether certain treatment was related thereto.

Hearings were held before the WCJ, at which Employer presented the

April 23, 2014 UR performed by Dr. Drass. Dr. Drass determined that the

compounded medication reviewed was reasonable and necessary. (UR

Determination, at 2.) Dr. Drass’ UR report indicated a diagnosis from Dr. Frank of

“neuropathic pain of both feet.” (UR Report, at 2.) Dr. Drass reviewed Claimant’s

medication regimen, which included various doses of Vioxx, Elavil, OxyContin,

and Percocet each day. Dr. Drass listed Claimant’s diagnoses as RSD/CRPS of the

lower extremities with increasing depression secondary to situational anxiety, low

back pain, chronic lower extremity pain. (Id.) Dr. Drass looked at the

“compounded medication” prescribed by Dr. Frank from January 6, 2014, and

specifically, the standard antineuropathic cream.4 (Id., at 3.) Dr. Drass determined

that the antineuropathic cream does provide Claimant “with some good relief of his

lower extremity RSD/CRPS complaints, thereby allowing him to continue to

4

The antineuropathic cream contains compound agents of ketamine, gabapentin, amitriptyline,

baclofen, clonidine, and bupivacaine and is to be applied two to three times a day, as needed.

(UR Report, at 3.)

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perform his daily activities on a fairly remarkable level.” (Id.) Thus, he concluded

that the compounded medication was reasonable and necessary. (Id., at 5.)

Claimant also presented the July 22, 2014 narrative report of Dr.

Frank. The report was dictated at Claimant’s request to justify Dr. Frank’s

treatment regarding the medications prescribed to Claimant from January 6, 2014

and forward. Dr. Frank reported that Claimant had undergone surgical fusion, and

open reduction internal fixation surgery due to the fractures he suffered after the

work-related fall. (Dr. Frank Report, at 1.) Dr. Frank observed that the fractures

healed but Claimant had continuing pain. (Id.) Dr. Frank diagnosed Claimant with

RSD/CRPS and sees Claimant every three to six months. (Id.) Dr. Frank treats

Claimant’s pain with various medications, including the antineuropathic cream,

which Claimant found beneficial. (Id.) Dr. Frank stated that “the treatment

involving the compounded medications are appropriate and necessary for

controlling this patient’s pain and symptoms from RSD.” (Id., at 2.)

The WCJ found the reports of Dr. Frank and Dr. Drass credible and

persuasive. The WCJ stated that:

Both Dr. Frank and Dr. Drass support the care under

review as reasonable and necessary; both also support

additional injuries as noted above as being within the

ambit of accepted injuries as described in the C&R

Agreement. In this regard, even without reference to

“various injuries” under the C&R [Agreement] (under

which the ambit of additional conditions would qualify),

relief can appropriately be granted to the Claimant in that

this record supports the additional conditions as resulting

from the accepted “R and L Foot Fracture” work injuries

described in both the Supplemental Agreement and the

C&R Agreement. The record as presented clearly

4

implicates the foot fractures as the operative reason for

Claimant’s continuing work related problems despite

healing of the “fractures” themselves—Claimant’s

continuing problems flow from the existing “fractures.”

(F.F. No. 8.)

The WCJ denied Employer’s Review UR petition and granted

Claimant’s Medical petition, finding the treatment under review reasonable and

necessary as determined by Dr. Drass and that the treatment for RSD/CRPS was

within the scope of the C&R Agreement. Employer appealed to the Board.

The Board determined that the C&R Agreement precluded Claimant

from expanding the description of his injury. The Board agreed that Employer

“remained responsible for all reasonable and necessary medical expenses related to

the acknowledged injuries.” (Board Op. at 1.) However, the Board found that

Claimant’s RSD/CRPS diagnosis was not acknowledged by the C&R Agreement.

Thus, it determined that Employer is not responsible for the medical expenses

related to the RSD/CRPS diagnosis. The Board noted that the C&R Agreement

was entered into approximately five years after Claimant began treating with Dr.

Frank for the RSD/CRPS. The Board asserted that “[t]o construe ‘various injuries’

as wholly open-ended is to defeat the purpose of encouraging settlements and

finality.” (Board Op. at 7.) Thus, the Board reversed the WCJ’s decision.

Claimant now petitions this Court for review.5

5

Our review is limited to determining whether constitutional rights were violated, whether the

adjudication is in accordance with the law and whether necessary findings of fact are supported

by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.

5

Employer’s UR Petition

The utilization review process provides an avenue for challenging

whether medical treatment provided under the Workers’ Compensation Act6 (Act)

is reasonable and necessary. Section 306(f.1)(6)(i), 77 P.S. § 531(6)(i). In

utilization review, the employer bears the burden of proving that the challenged

medical treatment is unreasonable or unnecessary. Gary v. Workers’

Compensation Appeal Board (Philadelphia School District), 18 A.3d 1282, 1288

(Pa. Cmwlth. 2011). In determining reasonableness and necessity of a prescribed

medication, it is appropriate for the administrative reviewer to assess the

“treatment in the context of the entire course of care for the work-related injury.”

Seamon v. Workers’ Compensation Appeal Board (Sarno & Son Formals), 761

A.2d 1258, 1262 (Pa. Cmwlth. 2000) (en banc).

In this case, Employer does not contend that the challenged treatment

is not a reasonable and necessary treatment for Claimant’s pain, which is described

by Drs. Frank and Drass as RSD/CRPS. Rather, Employer argues that it should

not be liable for treatment for RSD/CRPS because in the C&R Agreement

Employer only accepted responsibility for “fractured right and left feet.”

In Bloom v. Workers’ Compensation Appeal Board (Keystone Pretzel

Bakery), 677 A.2d 1314 (Pa. Cmwlth. 1996), this Court discussed the scope of the

UR process. Pursuant to regulation, the UR process is the proper method for

determining whether disputed treatment is reasonable and necessary. Id. at 1318;

6

Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.

6

34 Pa. Code § 127.406(a). However, the UR process is not the proper method to

determine the causation of an injury or condition. Bloom, 677 A.2d at 1318; 34

Pa. Code § 127.406(b). In Bloom we held that the regulation recognized—

. . . a distinction between an issue concerning causation

as opposed to reasonableness and necessity of treatment.

An action concerning causation cannot be raised before a

[utilization review organization]; therefore, it must be

raised in a petition that is intended to be heard directly by

a WCJ. Likewise, an action concerning the

reasonableness and necessity of treatment is to be raised

in a request for UR that will be submitted to a [utilization

review organization].

677 A.2d at 1318.

Similarly, the UR process, which is tailored to the narrow question of

medical necessity and reasonableness, is not the proper vehicle for an employer to

litigate the question of whether a particular injury or condition is within the scope

of an injury acknowledged in a C&R agreement. See 34 Pa. Code § 127.406. As

with a causation challenge, the proper procedure for an employer to address the

scope of an acknowledged injury would be to file a petition for review to be heard

by a WCJ. See Section 413(a) of the Act, 77 P.S. § 771. The Board erred by

reversing the decision of the WCJ denying Employer’s UR petition.

Claimant’s Medical Petition

Claimant’s argument may be understood as contending that the Board

erred in reversing the WCJ’s decision to grant his Medical petition in two ways:

(1) in determining that Claimant was precluded from expanding or modifying the

7

description of his injury in the C&R Agreement; and (2) in determining that

Claimant’s treatment for pain was beyond the scope of the treatment the Employer

agreed to pay for in the C&R Agreement.

In DePue v. Workers’ Compensation Appeal Board, (N. Paone

Construction, Inc.), the claimant sought to amend the description of an

acknowledged work injury more than two years after entering into a C&R

agreement that identified the injury as “a severe closed head injury with seizure

disorder and short term memory loss.” 61 A.3d 1062, 1064 (Pa. Cmwlth. 2013).

Specifically, the claimant sought to add a left shoulder injury to that description,

arguing that the shoulder injury had been erroneously omitted from the articulation

of the acknowledged injury in the C&R agreement. Id. at 1065.

This Court rejected that argument and ruled that once a valid C&R

agreement is approved, “it is final, conclusive[,] and binding on the parties.” Id. at

1067. An approved C&R agreement may only be set aside “upon a clear showing

of fraud, deception, duress, mutual mistake, or unilateral mistake caused by” fault

of the opposing party. Id. Otherwise, the C&R agreement may not be amended.

Id.

In this case, there is no allegation or evidence of fraud, deception,

duress or mistake. There is, therefore, no basis to set aside or amend the C&R

Agreement. DePue. Accordingly, the Board was correct in concluding that the

Claimant could not expand or modify the description of the injury acknowledged

in the C&R Agreement.

8

However, the second prong of Claimant’s argument—that the Board

erred in determining that the medical treatment at issue was beyond the scope of

the C&R Agreement—requires us to look at more than just the description of the

acknowledged injury. We must also look at the description of Employer’s

accepted responsibility for medical treatment causally related to the injury. In this

case, the C&R Agreement is set forth on a standardized form generated by the

Department of Labor and Industry, Bureau of Workers’ Compensation.7 The

document describes Claimant’s injury as “[v]arious injuries and bodily parts

including but not necessarily limited to fractured right and left feet.” (C&R

Agreement, ¶ 4, at 1.) In response to a prompt for a summary of “all benefits to be

paid on and after the date of this stipulation or agreement for reasonable and

necessary medical treatment causally related to the injury and the length of time

such payment of benefits is to continue,” the C&R Agreement states:

The Workers’ Compensation Insurance Carrier, herein,

agrees to pay for all reasonable and necessary medical

expenses that are related to the aforesaid acknowledged

work-related injury (ies) pursuant to the terms and

conditions of the Pennsylvania Workers’ Compensation

Act, as amended. The Workers’ Compensation Insurance

Carrier, herein, reserves the right to submit any bill(s)

and expense(s) to Utilization Review and/or use any

other provision(s) of the Act regarding the payment of

any bills for medical treatment as aforesaid.

(Id., ¶ 10, at 2.)

7

The form is titled “Compromise and Release Agreement by Stipulation pursuant to Section 449

of the Workers’ Compensation Act,” or “LIBC-755.”

9

Thus, Employer agreed to “pay for all reasonable and necessary

medical expenses that are related to the. . . acknowledged work-related injury. . .

.” (C&R Agreement, ¶ 10, at 2) (emphasis added.) In the C&R Agreement,

Employer did not agree to pay only for medical treatment of Claimant’s fractured

feet; Employer agreed to pay for all reasonable and necessary medical expenses

related to Claimant’s fractured feet.8

When there is a dispute regarding whether medical treatment is

beyond the scope of a C&R agreement, assignment of the burden of proof depends

on the relationship between the treatment and the acknowledged injury. Though

there was no C&R agreement in Kurtz v. Workers’ Compensation Appeal Board

(Waynesburg College), 794 A.2d 443 (Pa. Cmwlth. 2002), we find this case to be

instructive. In Kurtz, the employer accepted responsibility for the claimant’s head

injury, which was described as “a grade two concussion with retrograde amnesia

and severe paracervical spasms.” Id. at 445. More than one year later, the

claimant sought medical treatment for pain that emerged “in the area of the original

injury.” Id. However, employer refused to pay for this treatment. Id. at 446.

The claimant in Kurtz then sought review with a WCJ, who ruled for

the employer after determining that the claimant failed to meet his burden of

proving with “unequivocal medical evidence. . . that his current condition was

causally related to his work injury. . . .” Id. at 447. The claimant appealed to this

8

The C&R Agreement clearly limited Employer’s responsibility for the indemnity aspects of

Claimant’s work injury. However, the language of ¶ 10 of the C&R Agreement does not

expressly limit Employer’s responsibility for medical expenses associated with the

acknowledged injury in any way. Consequently, Employer remains responsible for medical

treatment of the acknowledged injury.

10

Court, arguing that because his symptoms were “obviously related to his original

work-related injury” the burden should be on the employer “to establish that the

symptoms were unrelated to the original injury.” Id. This Court agreed with the

claimant:

If. . . a claimant receives medical treatment for new

symptoms that allegedly arise from the compensated

injury, and the employer refuses to pay the associated

bills, the burden of establishing that the symptoms and

treatments are related to the compensable injury turns on

whether the connection is obvious. See e.g., Hilton Hotel

Corp. v. Workers’ Compensation Appeal Board (Totin),

[518 A.2d 1316 (Pa. Cmwlth. 1986)].

An “obvious” connection “involves a nexus that is so

clear that an untrained lay person would not have a

problem making the connection between” the new

symptoms and the compensated injury; the new

symptoms would be a “natural and probable” result of the

injury [Tobias v. Workers’ Compensation Appeal Board

(Nature’s Way Nursey, Inc.), 595 A.2d (Pa. Cmwlth.

1991); see McDonnell Douglas Truck Services, Inc. v.

Workers’ Compensation Appeal Board (Feldman), 655

A.2d 655 (Pa. Cmwlth. 1995)]. If the new symptoms and

the compensable injury are obviously related, and

benefits have not been terminated, then the claimant will

benefit from the presumption that the new symptoms are

related to the compensable injury and, thus, his

employment, and it will be the burden of the employer to

prove that the new symptoms complained of are

unrelated to the compensable injury.

Id. at 447-48.

In this case, Employer accepted responsibility for treatment for

Claimant’s fractured feet. Thereafter, Claimant sought treatment for pain in those

11

feet. There exists an obvious connection between the injury and the pain. For

Employer to avoid responsibility for the medical expenses resulting from treatment

of the pain in Claimant’s feet, Employer must prove that the treatment is for an

injury that is distinct from the acknowledged injury. Kurtz. However, Employer

presented no such medical evidence to the WCJ. In fact, all of the medical

evidence presented tended to show the opposite. Employer merely argued that

RSD/CRPS is not specifically acknowledged in the C&R Agreement. This

argument, without supporting medical evidence, is insufficient to show that the

RSD/CRPS is a distinct injury beyond the scope of the C&R Agreement. The

holding in DePue does not compel a different result on this question, as the

relevant issue there was whether the claimant could amend a C&R agreement

absent evidence of fraud, deception, duress or mistake, not whether treatment was

within the scope of a C&R agreement.

The Board erred in concluding that Employer was not responsible for

medical expenses related to Claimant’s RSD/CRPS where (1) substantial evidence

in the record supported the WCJ’s determination that the condition was related to

the acknowledged work injury; (2) the C&R Agreement stated that Employer was

responsible for medical expenses related to the acknowledged work injury; and (3)

Employer failed to present any evidence that the challenged treatment was beyond

the scope of the C&R Agreement.

Accordingly, we reverse.

__________________________________

JULIA K. HEARTHWAY, Judge

12

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas Haslam, :

Petitioner :

:

v. : No. 1655 C.D. 2016

:

Workers’ Compensation Appeal :

Board (London Grove :

Communication), :

Respondent :

ORDER

AND NOW, this 1st day of September, 2017, the order of the

Workers’ Compensation Appeal Board in the above-captioned matter is reversed.

__________________________________

JULIA K. HEARTHWAY, Judge