stating that the WCJ, as fact-finder, makes credibility and evidentiary weight determinations regarding irregularities or deficiencies in the evidence, and that the breadth of information reviewed by the UR reviewer is a factor that the WCJ may consider, but it is no more conclusive than any other single factor that is considered in evaluating the credibility of conflicting expert opinions
How later courts described this case
- stating that the WCJ, as fact-finder, makes credibility and evidentiary weight determinations regarding irregularities or deficiencies in the evidence, and that the breadth of information reviewed by the UR reviewer is a factor that the WCJ may consider, but it is no more conclusive than any other single factor that is considered in evaluating the credibility of conflicting expert opinions
- discussing Seamon v. Workers’ Compensation Appeal Board (Sarno & Son Formals), 761 A.2d 1258 (Pa. Cmwlth. 2000) (holding the same), and rejecting the claimant’s similar competency argument
- prevailing party is entitled to all reasonable inference drawn from the evidence
- fact-finder may draw reasonable inferences from the evidence presented; on appeal, those conclusions must be reviewed in the light most favorable to the prevailing party
Written by the judges who cited it.
Distinguished
Distinguished by Havenstrite v. Workers' Compensation Appeal Board, 2003 Pa. Commw. LEXIS 741 (2003)
Although Seamon and Solomon are factually distinguishable from the present case, in that the reviewers in those cases indicated that the lack of information would not prevent them from forming an opinion as to the reasonableness or necessity of the care at issue, that distinction is immaterial under Solomon.
The opinion
Dissenting Opinion by
Judge FRIEDMAN.
I respectfully dissent. The majority holds that the testimony of Alan Cooper-stein, Ph.D., (the Reviewer) is competent and, therefore, constitutes substantial evidence to support a finding that the treatment provided to Ronald Smack (Claimant) by Ira Solomon, Ph.D., is not reasonable or necessary. For the reasons that follow, I cannot agree that the Reviewer’s testimony is competent to support such a finding.
In a utilization review (UR) proceeding before a workers’ compensation judge (WCJ), the employer bears the burden of proving by substantial competent evidence that the challenged medical treatment is not reasonable or necessary. Topps Chewing Gum v. Workers’ Compensation Appeal Board (Wickizer), 710 A.2d 1256 (Pa.Cmwlth.1998). Medical testimony that is based upon possibilities is not legally competent evidence. Industrial Recision Services v. Workers’ Compensation Appeal Board (Farbo), 808 A.2d 994 (Pa.Cmwlth.2002).
In this case, the Reviewer admitted that, because of deficiencies in the materials provided, he could not “get a picture” of Claimant or determine whether Claimant’s complaints were valid. 1 (R.R. at 281a, 295a.) It seems to me that, to determine *221 whether specific treatment is reasonable or necessary for a claimant, a UR reviewer must have knowledge of the claimant’s condition. A UR reviewer’s function is not to guess about the reasonableness and necessity of treatment based on the possible condition of a claimant. The UR reviewer’s opinion must be an informed opinion. If the records provided are deficient, the reviewer has an obligation under the UR regulations to seek additional materials. 2 Otherwise, a claimant who truly needs a particular treatment may be denied medical benefits based solely on a provider’s inadequate records. Because the Reviewer admitted that he could not determine Claimant’s condition from the materials provided and because the Reviewer did not seek to supplement those materials, I conclude that the Reviewer’s testimony was not competent to support a finding that Dr. Solomon’s treatment of Claimant is not reasonable or necessary.
Accordingly, I would reverse. 3
. Moreover, the Reviewer conceded at his deposition that, because he did not examine Dr. Solomon's deposition testimony in depth, he could not determine whether Dr. Solomon properly evaluated the propriety of biofeedback treatment for Claimant. (R.R. at 297a.)
. The regulation at 34 Pa.Code § 127.469 (emphasis added) states:
The URO shall give the provider under review written notice of the opportunity to discuss treatment decisions with the reviewer. The reviewer shall initiate discussion with the provider under review when such a discussion will assist the reviewer in reaching a determination. If the provider under review declines to discuss treatment decisions with the reviewer, a determination shall he made in the absence of such a discussion.
Here, when asked whether he spoke to Dr. Solomon before making his decision, the Reviewer replied, "No. Typically, in a[UR], the materials that I receive will indicate whether the provider is requesting a contact. In his case, he refused contact.... [I]t was on a form that came from the [URO].” (R.R. at 288a.) However, although Dr. Solomon did not request an opportunity to discuss his treatment decisions with the Reviewer when the URO gave him written notice under 34 Pa. Code § 127.469 , once the Reviewer concluded that the materials provided by Dr. Solomon lacked pertinent information, the Reviewer had an obligation under the regulation to initiate a discussion with Dr. Solomon in order to reach a proper determination. Although Dr. Solomon might have declined to speak with the Reviewer when he received notice, there is no reason to assume he would have continued to refuse had a request for information been made.
. Indeed, the regulation at 34 Pa.Code § 127.471(b) states, "If the reviewer is unable to determine whether the treatment under review is reasonable or necessary, the reviewer shall resolve the issue in favor of the provider under review.” Here, the Reviewer was unable to "get a picture” of Claimant and was unable to determine “how valid the [Claimant's complaints were.” (R.R. at 281a, 295a.) Absent an understanding of Claimant’s condition, the Reviewer could not possibly determine what type of treatment would be reasonable or necessary for Claimant. Under those circumstances, the Reviewer should have resolved the matter in favor of Dr. Solomon.