Opinion
No. 467 C.D. 2014
10-29-2014
Michael Perry, Petitioner v. Workers' Compensation Appeal Board (MidAtlantic Hose Center, LLC), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Michael Perry (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) affirming an order of a workers' compensation judge (WCJ) that denied Claimant's review petition seeking to add a psychiatric injury to his previously accepted work-related injuries, and denied in part Claimant's petition to review utilization review determinations (UR review petitions) regarding ongoing treatment by two of Claimant's regular treating physicians. Claimant contends the Board, in performing only a cursory review of the record, failed to identify substantial material omissions, errors and inconsistencies in the WCJ's findings, which render the WCJ's decision not properly reasoned concerning the description of the work injury and the UR review petitions. Claimant further contends the Board erred in failing to hold a UR determination untimely and thus inadmissible. Upon review, we affirm.
I. Background
A. NTCP; 2009 WCJ Decision
In August 2007, while employed by MidAtlantic Hose Center, LLC (Employer), Claimant sustained a work injury while breaking loose a hose from a piece of heavy equipment. Two days after the injury, Employer issued a notice of temporary compensation payable (NTCP) acknowledging Claimant's work injury as an upper back and neck strain.
In June 2009, a WCJ issued an order granting Claimant's review petition with respect to the description of the work injury. The WCJ determined that in addition to the previously recognized injuries, Claimant sustained an aggravation and exacerbation of an L5-S1 spondylolisthesis, strain and sprain of the lower cervical and thoracic spine with fibromyositis of the lower cervical and thoracic spine, and aggravation of facet disease in the upper thoracic spine.
B. Claimant's UR Review and Review Petitions; Employer's Termination
Petition
In August 2011, Claimant filed three UR review petitions seeking review of the medical services provided by his two primary treating physicians and a pain specialist. In addition, Claimant filed two review petitions alleging he suffers from reflex sympathetic dystrophy, also known as complex regional pain syndrome (RSD/CRPS), related to his August 2007 work injury. Conversely, in February 2012, Employer filed a termination petition alleging that as of December 2011, Claimant recovered from his work injury.
C. Claimant's Testimony
Claimant testified that in August 2007 he injured his back at work while trying to break loose a hose from a piece of heavy equipment. He felt a pop in his upper back. Shortly thereafter, Claimant's entire back became symptomatic. Since then, Claimant continues to regularly suffer from upper, mid and lower back pain, headaches, and pain throughout his lower extremities. Overall, Claimant feels his condition continues to worsen.
Claimant's primary treating physicians specialize in family practice and sports medicine. Their treatment modalities temporarily reduce the severity of Claimant's pain, but do not eliminate it. Although Claimant is able to participate in some basic daily living activities, his wife does most of the household chores. In addition, Claimant cannot engage in the same activities with his children that he did before his injury. In January 2011, Claimant began treating with a registered psychiatric nurse.
Claimant also treated with Dr. Joseph Richards (Physiatrist), a physician board certified in physical medicine and rehabilitation. However, Physiatrist's cervical epidural steroid injections and facet blocks did not help Claimant.
In addition, Claimant testified he would like to try a special pain treatment with Dr. Robert Schwartzman, a pain specialist well known for treating RSD/CRPS. This risky treatment involves a five-day intravenous infusion of ketamine.
D. Medical Evidence
In support of his review petitions, Claimant submitted the deposition testimony of his primary treating physician, Dr. Robert Sing (Claimant's Physician). Based on his multiple examinations, Claimant's Physician testified as to the gradual deterioration of Claimant's condition. Claimant's Physician diagnosed Claimant's work-related condition as:
aggravation of an L5-S1 spondylolisthesis with a left L5 radiculopathy, exacerbation and aggravation of cervical and degenerative disc and joint disease with post traumatic cervical facet syndrome, cerviogenic headaches, post traumatic fibromyositis of the cervical, dorsal and lumbosacral spines, exacerbation and aggravation of thoracic spine spondylolisthesis, cervical and brachial plexus sensitization of the upper extremities with [RSD/CRPS], adjustment disorder with depression and anxiety features due to chronic pain and hypogonadism secondary to narcotic usage.Dep. of Robert Sing (Sing. Dep.), 11/22/11, at 12; Reproduced Record (R.R.) at 313a.
Claimant's Physician and his partner, Dr. Christopher Davis (Partner Physician), treat Claimant once or twice per week. Sing Dep. at 7; R.R. at 308a. They provide Claimant with pain management through a combination of treatment modalities. Id. Their treatment includes manipulation therapy, percutaneous electrical nerve stimulation (PENS) and therapeutic exercises. Sing Dep. at 8; R.R. at 309a.
Claimant's Physician also diagnosed Claimant as suffering from RSD/CRPS. See Sing Dep. at 25-26; R.R. at 326a-27a. This prompted Claimant's Physician to refer Claimant to Dr. Schwartzman for possible ketamine infusion treatment. Id. Claimant's Physician also referred Claimant to Physiatrist, who treated Claimant with facet blocks and cervical epidural steroid injections.
In addition, Claimant's Physician testified Claimant began feeling anxious and depressed as a result of his chronic pain. Sing Dep. at 28; R.R. at 329a. He diagnosed Claimant's psychological condition as "adjustment disorder with anxiety and depression features secondary to chronic pain." Id. Consequently, in January 2011, Claimant's Physician referred Claimant to a registered psychiatric nurse, Renee Freilich, (Psychiatric Nurse) for treatment. Id.
Psychiatric Nurse testified she is a board certified psychiatric clinical nurse specialist. Based on her January 2011 examination of Claimant, Psychiatric Nurse diagnosed Claimant as suffering from adjustment reaction with depression and anxiety. Dep. of Renee Freilich (Freilich Dep.), 5/13/11, at 14; R.R. at 239a. Psychiatric Nurse directly related Claimant's psychiatric diagnosis to his 2007 work injury. Freilich Dep. at 16-17; R.R. at 241a-42a.
In support of its termination petition, Employer submitted deposition testimony from Dr. Nathan Schwartz (IME Physician), a physician board certified in anesthesiology and pain management. IME Physician examined Claimant in December 2011. Based on his examination and a review of Claimant's medical records, IME Physician opined Claimant fully recovered from his August 2007 work injury. Dep. of Nathan Schwartz (Schwartz Dep.), 2/21/11, at 30-31; R.R. at 187a-88a. IME Physician also opined Claimant did not suffer from RSD/CRPS. Id.
Employer also submitted deposition testimony from a board certified psychiatrist, Dr. Gladys Fenichel (IME Psychiatrist), who examined Claimant in November 2011. Based on her examination and a review of Claimant's medical records, IME Psychiatrist ultimately opined that Claimant does not have a psychiatric disorder causally related to his work injury. Dep. of Gladys Fenichel (Fenichel Dep.), at 25; R.R. at 121a. IME Psychiatrist further opined that Claimant did not meet the criteria for an adjustment order diagnosis. Fenichel Dep. at 27; R.R. at 123a. Claimant drove to his evaluation and did not show signs of pain or pain behavior during the evaluation; he did not show signs of sadness or anxiety. Fenichel Dep. at 27-28; R.R. at 123a-24a.
E. UR Determinations
Three UR determinations, all issued in early August 2011, were submitted into evidence. Dr. Robert Cohen (UR Reviewer Cohen) rendered a UR determination with respect to Claimant's Physician's treatment of Claimant, which consists of osteopathic manipulative therapy, PENS treatment and therapeutic exercises. UR Reviewer Cohen determined that as of May 2011, office visits and treatment of more than once per month were neither reasonable nor necessary.
Dr. John Reinhardt (UR Reviewer Reinhardt) rendered a UR determination with respect to Partner Physician's treatment of Claimant, which also consists of osteopathic manipulative therapy, hot/cold pack treatments, electrical stimulation and PENS treatment. UR Reviewer Reinhardt determined that as of May 2011, office visits and treatment of more than once per month were neither reasonable nor necessary.
Dr. Joshua Krassen (UR Reviewer Krassen) rendered a UR determination with respect to Physiatrist's treatment of Claimant, which consists of facet blocks and cervical epidural steroid injections. UR Reviewer Krassen determined Physiatrist's treatments were neither reasonable nor necessary.
F. WCJ's Decision
In his decision, the WCJ determined Claimant met his burden of proof in showing, that in addition to his previously recognized work-related conditions, Claimant suffers from RSD/CRPS as a result of his August 2007 work injury. WCJ Op., 8/8/12, Finding of Fact (F.F.) No. 20; Conclusion of Law (C.L.) No. 1. In so doing, the WCJ credited in part the testimony of Claimant's Physician that Claimant suffers from RSD/CRPS involving his upper left extremity gradually spreading to his brachial plexus upper trunk lateral cord and lower trunk of the upper extremity. F.F. Nos. 19, 20. The WCJ further found, based on Claimant's Physician's testimony, that Claimant could not return to his pre-injury job. F.F. No. 20.
However, the WCJ rejected Claimant's Physician's testimony that his weekly treatment of Claimant, which consists of osteopathic manipulative therapy, PENS treatment and therapeutic exercises, was reasonable and necessary. F.F. No. 20. More specifically, the WCJ also found Claimant's Physician's testimony regarding the need for weekly treatment inconsistent with the credible testimony of UR Reviewer Cohen that said treatment is needed only once per month. Id.
In addition, the WCJ determined Claimant did not suffer from a work-related psychological or psychiatric condition. F.F. Nos. 20-22; C.L. No. 2. In so doing, the WCJ credited IME Psychiatrist's testimony in its entirety. F.F. No. 22.
Next, the WCJ denied Employer's termination petition. C.L. No. 3. To that end, the WCJ rejected IME Physician's testimony of full recovery as not credible. F.F. No. 23. The WCJ noted IME Physician did not participate in Claimant's treatment and examined him on only one occasion. Id.
Turning to the UR review petitions, the WCJ concluded Employer met its burden in part by establishing that the office treatment provided by Claimant's Physician and Partner Physician, more than once per month, was unreasonable and unnecessary. F.F. Nos. 25, 26; C.L. Nos. 5, 6.
Nonetheless, the WCJ determined Employer failed to meet its burden of proving Physiatrist's treatment of Claimant, which included steroid injections and facet blocks, was unreasonable or unnecessary. F.F. No. 24; C.L. No. 4. The WCJ noted that Claimant's Physician credibly testified Physiatrist's treatment was therapeutic in decreasing inflammation, and diagnostic in that it confirmed where Claimant's problems were located. F.F. No. 24.
G. Board's Decision
Claimant appealed the WCJ's decision to the Board, which affirmed. The Board rejected Claimant's arguments that the WCJ failed to make reasoned credibility determinations, and that the WCJ's findings omitted substantial material information. To that end, the Board observed, the WCJ provided a clear explanation as to why he accepted or rejected each expert's testimony. Bd. Op., 2/20/14, at 11. The Board further noted the WCJ's findings were supported by substantial credible evidence. Id.
The Board also addressed Claimant's argument that the UR determinations were inadmissible because Employer did not establish the UR determinations were timely rendered within 30 days of a completed request for records. See Section 306(f.1)(6)(ii) of the Workers' Compensation Act (Act) (utilization review organization (URO) shall issue a written report of its findings and conclusions within 30 days of a request). The Board, observing that Claimant made no allegations that the UROs did not meet their deadlines, rejected Claimant's argument. Claimant petitions for review.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §531(6)(ii).
This Court's review is limited to determining whether the WCJ's findings of fact were supported by substantial evidence, whether an error of law was committed or whether constitutional rights were violated. 2 Pa. C.S. §704; Dep't of Transp. v. Workers' Comp. Appeal Bd. (Clippinger), 38 A.3d 1037 (Pa. Cmwlth. 2011).
II. Issues
Claimant contends the Board performed an insufficient review of the evidentiary record, thereby failing to identify substantial and material omissions, errors and inconsistencies in the WCJ's findings of fact and credibility determinations. Claimant asserts these shortcomings in the WCJ's findings render his decision not properly reasoned with respect to the description of the injury and the UR review petitions. Claimant also contends the Board erred in failing to determine that Employer did not establish the UR determinations were timely issued, which would render them inadmissible.
III. Discussion
A. Generally
1. Appellate Role of Board/Reviewing Courts
To begin, we emphasize that the WCJ is the ultimate fact-finder in workers' compensation cases. Bethenergy Mines, Inc. v. Workmen's Comp. Appeal Bd. (Skirpan), 612 A.2d 434 (Pa. 1992). It is the WCJ's role to assess credibility and resolve conflicts in the evidence. Id. In other words, it is not the role of the Board or a reviewing court to reweigh the evidence on appeal or reassess the credibility of the witnesses. Id. Rather, the Board or reviewing court must determine, upon consideration of the evidence as a whole, whether the WCJ's findings have the requisite support in the record. Id. A reviewing court may not inquire into the reasonableness of a WCJ's findings; rather, it must determine only whether the findings were supported by substantial evidence. 2 Pa. C.S. §704; Skirpan. In other words, reinterpretation of the evidence is beyond the Board's scope of review. Ace Wire Spring & Form Co. v. Workers' Comp. Appeal Bd. (Walshesky), 93 A.3d 923 (Pa. Cmwlth. 2014).
Substantial evidence is defined as such relevant evidence a reasonable mind might accept as adequate to support a conclusion. Skirpan; Waldameer Park, Inc. v. Workers' Comp. Appeal Bd. (Morrison), 819 A.2d 164 (Pa. Cmwlth. 2003). In performing a substantial evidence analysis, the evidence must be viewed in a light most favorable to the party that prevailed before the WCJ. Waldameer Park. To that end, the prevailing party is entitled to all reasonable inferences deducible from the evidence. Id.
Further, if the record contains substantial evidence supporting the WCJ's findings, they must be upheld. Minicozzi v. Workers' Comp. Appeal Bd. (Indus. Metal Plating Inc.), 873 A.2d 25 (Pa. Cmwlth. 2005). It is irrelevant whether the record contains evidence that would support findings other than those made by the WCJ; the critical inquiry is whether the evidence supports the findings actually made. Id.
2. Reasoned Decision
Claimant also cites the WCJ's duty under Section 422(a) of the Act (Act) to issue a "reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole which clearly and concisely states and explains the rationale for the decisions ...." 77 P.S. §834. "A decision is 'reasoned' if it allows for adequate review by the appellate courts under the applicable review standards." Pryor v. Workers' Comp. Appeal Bd. (Colin Serv. Sys.), 923 A.2d 1197, 1202 (Pa. Cmwlth. 2006). Section 422(a) requires some explanation of credibility determinations regarding conflicting deposition testimony; a WCJ must articulate an objective basis for her credibility determinations. Daniels v. Workers' Comp. Appeal Bd. (Tristate Transp.), 828 A.2d 1043 (Pa. 2003); Dorsey v. Workers' Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191 (Pa. Cmwlth. 2006). However, there are countless objective factors which may support a WCJ's credibility determinations. Daniels; Dorsey. Further, the reasoned decision requirement does not require the WCJ to discuss all evidence presented. Dorsey. Rather, the WCJ must make the findings necessary to resolve the issues presented by the evidence and that are relevant to the decision. Id. Most importantly, mere disagreement with a credibility finding is not a basis for setting it aside. Hall v. Workers' Comp. Appeal Bd. (Am. Serv. Grp.), 3 A.3d 734 (Pa. Cmwlth. 2010).
"While many petitioners challenging an adverse credibility determination would suggest that we review each and every component of the WCJ's reasoning for substantial evidence and reverse and remand if we can find any flaw, we do not believe the reasoned decision requirement takes us so far from the traditional notions of the deference owed credibility determinations." Casne v. Workers' Comp. Appeal Bd. (Stat Couriers, Inc.), 962 A.2d 14, 19 (Pa. Cmwlth. 2008). --------
3. Capricious Disregard of Evidence
Claimant further argues the WCJ's decision contains significant omissions and inconsistencies, which indicate the WCJ capriciously disregarded a substantial portion of the record. As to the capricious disregard standard, this Court explained:
[A]s fact finder, the WCJ is not required to accept even uncontradicted testimony. Capricious disregard occurs only when the fact-finder deliberately ignores relevant, competent evidence. A capricious disregard of the evidence in a workers' compensation case is a deliberate and baseless disregard of apparently trustworthy evidence.McCool v. Workers' Comp. Appeal Bd. (Sunoco, Inc.), 78 A.3d 1250, 1256 (Pa. Cmwlth. 2013), appeal denied, 87 A.3d 817 (Pa. 2014) (emphasis added) (citations omitted). Capricious disregard, by definition, does not exist where the WCJ expressly considers and rejects the evidence. Ace Wire. Therefore, a rejection of a witness's testimony as not credible is not a capricious disregard of that evidence. Williams v. Workers' Comp. Appeal Bd. (USX Corp.-Fairless Works), 862 A.2d 137 (Pa. Cmwlth. 2004).
Moreover, in Williams, we rejected the assertion that any individual point of testimony not specifically addressed in a WCJ's decision could be argued to have been capriciously disregarded. To that end, we reasoned (with emphasis added):
Our capricious disregard standard is not to be applied in such a manner as would intrude upon an agency's fact-finding role and discretionary decision making. As such, we herein stress that where a fact finder's adjudication clearly evidences the fact finder's review of the general body of a witness's testimony, and concomitantly does not deliberately ignore any uncontradicted relevant, material testimony, the fact finder's failure to detailedly summarize and/or address each individual portion of that body of testimony does not constitute a capricious disregard of any evidence not so detailed.Williams, 862 A.2d at 145-46.
B. Merits
1. Description of Work Injury
Claimant argues that viewing the evidence as a whole indicates there is no rational basis in the WCJ's findings for his determination not to correct the description of the work injury to include psychological injuries related to the August 2007 work accident. When a claimant seeks to correct an allegedly incorrect description of an injury in an NCP, the claimant must establish that a material mistake of fact or law existed when the NCP issued. Liveringhouse v. Workers' Comp. Appeal Bd. (ADECCO), 970 A.2d 508 (Pa. Cmwlth. 2009).
Claimant asserts the WCJ capriciously disregarded his testimony and medical evidence seeking to add a psychological injury. Claimant testified he experienced pain symptoms daily since the work injury, which includes headaches, neck, upper, mid- and lower back pain, and pain throughout his lower extremities. He became increasingly depressed because he could no longer perform common household tasks or play with his young children as he did in the past. Claimant discussed his feelings with his Physician, who referred him to Psychiatric Nurse, for weekly therapy. Claimant testified Psychiatric Nurse's treatment definitely helped with his feelings of anger and depression. See Dep. of Michael Perry (Perry Dep.), 9/30/11, at 6-13; R.R. at 270a-77a.
Claimant further asserts his Physician's testimony corroborates his own. In addition to Claimant's previously recognized work injuries, Claimant's Physician testified Claimant also suffers from RSD/CRPS and an adjustment disorder with depression and anxiety features as a result of chronic pain related to his work injury. Sing Dep. at 12-13; R.R. at 313a-14a. The WCJ credited Claimant's Physician's testimony that Claimant suffers from RSD/CRPS as a result of the work injury. F.F. No. 20.
However, the WCJ rejected Claimant's Physician's testimony that Claimant suffers from a psychological or psychiatric condition causally related to his work injury. F.F. No. 20. To the contrary, the WCJ credited IME Psychiatrist's opinion that Claimant "does not have a psychiatric disorder causally related to the work injury." F.F. No. 13; Fenichel Dep. at 25; R.R. at 121a. As fact-finder, the WCJ is free to accept or reject the testimony of any witness, including a medical witness, in whole or in part. A & J Builders, Inc. v. Workers' Comp. Appeal Bd. (Verdi), 78 A.3d 1233 (Pa. Cmwlth. 2013). What is more, the WCJ's authority over questions of credibility, conflicting evidence and evidentiary weight is unquestioned. Id. On appeal, neither the Board nor a reviewing court may reweigh a WCJ's credibility determinations. Furnari v. Workers' Comp. Appeal Bd. (Temple Inland), 90 A.3d 53 (Pa. Cmwlth. 2014). In addition, an adverse credibility determination is not a capricious disregard of that testimony. Williams.
In Finding of Fact No. 22, the WCJ stated:
This Judge has considered the testimony of [IME Psychiatrist] together with all other evidence in this matter and finds [IME Psychiatrist's] testimony credible in its entirety. Such testimony is corroborated by her clinical findings on her mental status examination of the Claimant, her review of [Claimant's Physician's] records and the doctor's expertise as a Doctor of Medicine holding board certification in psychiatry. Further, it is noted there is no credible evidence of record to show that the Claimant exhibited psychiatric/psychological symptoms within three months of the work injury and there is no credible evidence to show that the Claimant had psychiatric/psychological treatment until January of 2011 (over three years after the work injury).F.F. No. 22.
In rejecting Claimant's Physician's diagnosis of an adjustment disorder or other psychiatric problem, IME Psychiatrist explained that a diagnosis of an adjustment order must be based on specific criteria, which Claimant did not satisfy. Fenichel Dep. at 27; R.R. at 123a. One of the criteria for an adjustment disorder is that within three months of the event, the person shows signs that this event changed his behavior or feelings. Fenichel Dep. at 34; R.R. at 130a. Although Claimant's work injury occurred in August 2007, Claimant Physician's records did not identify problems with depression or anxiety prior to January 2011, when he referred Claimant for treatment with Psychiatric Nurse. Fenichel Dep. at 38; R.R. at 134a. IME Psychiatrist further opined that the failure of the pain injections could not be a triggering event for an adjustment disorder. Fenichel Dep. at 49; R.R. at 145a.
IME Psychiatrist also testified that Claimant did not appear sad or depressed at his psychiatric evaluation. Fenichel Dep. at 27-28; R.R. at 123a-24a. To that end, IME Psychiatrist testified Claimant, despite suffering from chronic pain did not have a diagnosis in the depression family. Fenichel Dep. at 32; 51-52; R.R. at 128a; 147a-48a. In sum, Claimant presented with a lot of pain and some frustration related to that pain. Fenichel Dep. at 57; R.R. at 153a. However, this is not a psychiatric condition. Id. Summarizing, IME Psychiatrist testified:
I was specifically asked whether [Claimant] had a psychiatric diagnosis related to the work injury, he does not in my opinion, and based on my evaluation of [Claimant] I would not have given him any psychiatric diagnosis.
Id.
Essentially, the WCJ rejected Claimant's Physician's diagnosis of an adjustment disorder with depression and anxiety based on IME Psychiatrist's testimony. See F.F. Nos. 20b, 20c. Our review of IME Psychiatrist testimony, viewed in its entirety, reflects that IME Psychiatrist did not diagnose Claimant with depression related either to the work injury itself, the treatment, or the resulting chronic pain. Moreover, on cross-examination, IME Psychiatrist never recanted her opinions or expressed any doubt regarding them. Consequently, IME Psychiatrist's testimony provides substantial competent evidence for the WCJ's finding that Claimant does not suffer from a psychological or psychiatric condition causally related to his August 2007 work injury. Corcoran v. Workers' Comp. Appeal Bd. (Capital Cities/Times Leader), 725 A.2d 868 (Pa. Cmwlth. 1999).
The WCJ also found IME Psychiatrist's testimony more credible than that of Psychiatric Nurse to the extent their testimonies were inconsistent. F.F. No. 21c. Thus, Psychiatric Nurse failed to persuade the WCJ that Claimant suffers from an adjustment reaction, with anxiety and depression, causally related to his work injury. F.F. No. 21b.
In summary, we determine that the WCJ's findings and conclusions, that Claimant does not suffer an adjustment disorder or other psychiatric problem related to his work injury, are supported by IME Psychiatrist's competent medical testimony. Therefore, we discern no error or abuse of discretion in the WCJ's denial of Claimant's review petition seeking to expand the description of injury to include a psychological injury.
2. UR Determinations
Claimant raises similar challenges to WCJ's credibility findings regarding the UR determinations. The employer, in all stages of a UR proceeding, carries the burden of demonstrating that the treatment in question is unnecessary or unreasonable. Gary v. Workers' Comp. Appeal Bd. (Phila. Sch. Dist.), 18 A.3d 1282 (Pa. Cmwlth. 2011). Treatment may still be reasonable and necessary where it is merely designed to manage the claimant's symptoms rather than to cure or improve the claimant's condition. Id. In meeting its burden, the employer's medical evidence must address the specific treatment under review. Id.
Although technically supported by the record, Claimant contends the WCJ's findings contain substantial omissions that render them erroneous and unreasoned. We disagree. In Finding of Fact No. 25, the WCJ stated (with emphasis added):
This Judge has considered the reported findings, conclusions and opinions of [UR Reviewer Cohen] (reviewed [Claimant's Physician's] treatment) together with all other evidence of record in this matter and finds [UR Reviewer Cohen's] reported findings, conclusions and opinions credible. Such is corroborated by [UR Reviewer Cohen's] review of voluminous medical records and reports and the professional articles that he referenced. Further it is noted that the Claimant credibly testified during his deposition of September 30, 2011 that he feels worse since first seeing [Claimant's Physician and Partner Physician] in October of 2007. Thus, this Judge finds that office visits by the Claimant with [Claimant's Physician] more than once per month are unreasonable and unnecessary.F.F. No. 25. Similarly, in Finding of Fact No. 26, the WCJ stated (with emphasis added):
This Judge has considered the reported findings, conclusions and opinions of [UR Reviewer Reinhardt] (reviewed [Partner Physician's] treatment) together with
all other evidence of record in this matter and finds such credible only where they are consistent with the credible reported findings, conclusions and opinions of [UR Reviewer Cohen] who was the URO's reviewer concerning [Claimant's Physician's] treatment. In all other respects the opinions of [UR Reviewer Reinhardt] are rejected. In making the aforesaid credibility determination it is noted that [Claimant's Physician] and [Partner Physician] are associated with the same practice and treated the Claimant on alternate dates. And further that the treatment modalities provided by [Partner Physician] are the same as provided by [Claimant's Physician] (osteopathic manipulative therapy, PENS, etc.)F.F. No. 26.
In his July 2011 UR report, UR Reviewer Cohen observed that Claimant showed no significant improvement in his ongoing symptomatology as a result of Claimant's Physician's treatment, which began in October 2007. Cohen UR Report, 7/26/11, at 5; R.R. at 36a. What is more, Claimant developed chronic low back pain syndrome. Id. For these reasons, UR Reviewer Cohen opined that office visits of once per month for treatment (osteopathic manipulative therapy, PENS and therapeutic exercises) and continuing evaluation, were reasonable and necessary. Id. However, UR Reviewer Cohen further opined that treatment more than once per month was neither reasonable nor necessary. Id. A UR reviewer may limit the frequency of treatments. Snyder v. Workers' Comp. Appeal Bd. (Int'l Staple & Machine), 857 A.2d 202 (Pa. Cmwlth. 2004).
A UR report shall be part of the record before the WCJ, and the WCJ shall consider the UR report as evidence, but he shall not be bound by it. Section 306(f.1)(6)(iv) of the Act, 77 P.S. §531(6)(iv); Jackson v. Workers' Comp. Appeal Bd. (Boeing), 825 A.2d 766 (Pa. Cmwlth. 2003). Here, UR Reviewer Cohen's report provides substantial evidence for the WCJ's determination that office visits with Claimant's Physician and Partner Physician more than once per month were unreasonable and unnecessary. Jackson.
However, Claimant contends the UR Reviewers based their opinions on an incorrect diagnosis because the WCJ expanded the description of the injury to include RSD/CRPS. Claimant further asserts it is illogical to rely on UR Physicians' opinions limiting treatment to once per month based on medical records from doctors who diagnosed Claimant with RSD/CRPS.
We disagree. UR Reviewer Cohen reviewed Claimant's Physician's treatment records and recognized that Claimant suffers from chronic back pain. See Cohen UR Report at 4-5; R.R. at 35a-36a. UR Reviewer Cohen reviewed Claimant's Physician's treatment modalities in detail and opined that office visits once per month for evaluation and treatment were reasonable and necessary for managing Claimant's pain. Cohen UR Report at 5; R.R. at 36a. Moreover, the failure to review any specific record would go to the weight of the evidence, not its competence. Gary.
Further, although the WCJ found Claimant suffers from RSD/CRPS, he rejected Claimant's Physician's testimony that Claimant needed office treatment more than once per month. F.F. No. 20. In so doing, the WCJ credited UR Reviewer Cohen's opinion that treatment once per month is sufficient to manage Claimant's pain. As noted above, the WCJ is free to accept or reject the testimony of any witness, including a medical witness, in whole or in part. A & J Builders.
For these reasons, we discern no error or abuse of discretion in the WCJ's determinations that Employer met its burden in part in the UR proceedings by establishing that Claimant's office treatments with Claimant's Physician and Partner Physician more than once per month were neither reasonable nor necessary. Gary.
C. Timeliness of UR Determinations
Claimant further contends the UR determinations are invalid because Employer failed to establish the timeliness of the determinations. In support of his position, Claimant cites Section 127.465 of Bureau of Workers' Compensation's (Bureau) Medical Cost Containment Regulations, titled "Request for UR—deadline for URO determination," which provides:
(a) A request for UR shall be deemed complete upon receipt of the medical records or 35 days from the date of the notice of the assignment, whichever is earlier.34 Pa. Code §127.465. Recently, in reviewing a timeliness challenge under 34 Pa. Code §127.465, we recognized that a URO has 65 days from the date of assignment to issue a written report. Womack v. Workers' Comp Appeal Bd. (Sch. Dist. of Phila.), 83 A.3d 1139 (Pa. Cmwlth.), appeal denied, 94 A.3d 1011 (Pa. 2014).
(b) A URO shall complete its review, and render its determination, within 30 days of a completed request for UR.
We reject Claimant's assertion of invalidity for several reasons. First, Claimant never challenged the UR determinations as untimely. Here, the Bureau issued its notices of assignment of the UR requests on June 3, 2011. See R.R. at 29a (Claimant's Physician); R.R. at 44a (Partner Physician). Both Bureau notices indicate a "Determination Due Date" of August 8, 2011. Id. Further, both UROs mailed their face sheet and package on or before August 8, 2011. See R.R. at 30a (UR determination reviewing Claimant's Physician's treatment mailed August 2, 2011); R.R. at 45a (UR determination reviewing Partner Physician's treatment mailed August 8, 2011). As such, the UR determinations appear timely rendered.
Nonetheless, in Womack, we rejected a timeliness challenge where the URO mailed its UR Determination 11 days late. We ultimately reasoned that the employer should not suffer where the assigned URO failed to meet a regulatory deadline. To that end, we stated:
[The employer] did not fail to meet a statutory or regulatory deadline in this case. Instead, it was the URO to whom the Bureau assigned this matter that failed to issue a timely decision. And while the URO's failure to comply with the [Bureau's] regulation may put the URO at risk of losing its authorization to conduct UR review, we see no basis in the Act, the regulations or case law to impose the additional consequence of vacating the URO's decision as void ab initio simply because the URO failed to issue it within the proscribed time period.Womack, 83 A.3d at 1148-49 (footnote omitted).
Here, Claimant, advancing the same statutory construction argument presented in Womack, requests that we reconsider our rationale in that case. Essentially, Claimant argues the 65-day deadline for a URO to issue its UR determination following the notice of assignment, must be interpreted as a mandatory rather than a directory deadline. Because the deadline is mandatory, Claimant asserts it is irrelevant whether a third party was involved. In Womack, we considered and rejected this argument. The appellant then raised this issue in a petition for allowance of appeal in Womack, which the Supreme Court denied. See 94 A.3d at 1011.
Given the circumstances here, including the fact that Claimant never challenged the UR determinations as untimely, and the fact that the UR determinations were mailed on or before the August 8, 2011 due date, we do not find Womack helpful here. Claimant nonetheless asks what would be the result if the URO missed the deadline by six weeks or even six months. However, such is not the case here. Therefore, we decline Claimant's invitation to revisit our recent decision in Womack.
IV. Conclusion
For the above reasons, we discern no error or abuse in the WCJ's decision denying Claimant's review petition seeking to add a psychological injury and granting in part the UR Determinations limiting Claimant's treatment with Claimant's Physician and Partner Physician to one office visit per month. Therefore, we affirm the order of the Board.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 29th day of October, 2014, for the reasons stated in the foregoing opinion the order of the Workers' Compensation Appeal Board is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge