Opinion
No. 716 C.D. 1998, No. 717 C.D. 1998.
Submitted: December 4, 1998.
February 19, 1999.
Before: HONORABLE JIM FLAHERTY, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE EMIL E. NARICK, Senior Judge.
OPINION
This opinion addresses two separate workers' compensation cases, which have been consolidated for the purpose of appeal. Peter R. Seamon (Claimant) appeals pro se from two separate orders of the Workers' Compensation Appeal Board (Board) issued on February 10, 1998. The merits of each appeal are addressed separately.
I.
Claimant appeals from an adverse decision regarding his Petition to Review of Utilization Review Determination (Utilization Review Petition). The Workers' Compensation Appeal Board (Board) affirmed the decision and order of the Workers' Compensation Judge (WCJ), which held that certain treatment of Claimant's work-related injury was not reasonable or necessary. Although Claimant raises numerous issues in his appeal brief, we shall limit our discussion to those issues properly preserved in the proceedings below. Claimant preserved the following five arguments which merit consideration:
1. Does reassignment of a petition to a second WCJ constitute reversible error?
2. Does an employer or its insurance carrier waive the right to utilization review by not objecting to the treatment at issue in advance?
3. Did the employer timely file its Utilization Review Initial Request?
4. Did the Board err in holding that it was harmless error for the WCJ to admit certain evidence after the 45-day filing deadline specified in 34 Pa. Code § 131.53(a) ?
5. May a reviewing doctor render a utilization review determination without reviewing Claimant's complete medical file relevant to the work-related injury under review?
On March 28, 1984, Claimant sustained injuries to his neck and back during the course and scope of his employment with Sarno Son Formals (Sarno). Claimant was driving Sarno's delivery van when it was struck broadside by another vehicle. As required by the Workers' Compensation Act (Act), Claimant's medical expenses were paid and he received partial disability benefits. On July 13, 1989, Claimant's partial disability benefits of $14.60 per week were commuted for the remainder of his eligibility.
Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 1-1041.4.
Claimant continued to receive chiropractic treatment from Dr. Joseph Gnall until he relocated from Pennsylvania to Tucson, Arizona in September 1994. Claimant sought chiropractic treatment with Dr. David Welch, D.C., in Tucson on September 28, 1994. Pursuant to the medical cost containment provisions of Act 44, Sarno filed a § 306(f.1)(6) Utilization Review Initial Request (UR-I) on January 6, 1995, challenging the reasonableness and necessity of Dr. Welch's treatment of Claimant. The Bureau of Workers' Compensation (Bureau) appointed Medical Planning and Review as the Utilization Review Organization (URO), which in turn selected Dr. Jeff A. Behrend, D.C., as the reviewing doctor. Dr. Behrend reviewed Claimant's medical file obtained by the URO from Dr. Welch. In his report to the URO, Dr. Behrend concluded that Dr. Welch's chiropractic treatment of Claimant was not reasonable or necessary.
Section 306(f.1)(6) provides in pertinent part that the reasonableness or necessity of all treatment provided by a health care provider under this act may be subject to . . . utilization review at the request of an employe, employer, or insurer. The department shall authorize utilization review organizations to perform utilization review under this act. Utilization review of all treatment rendered by a health care provider shall be performed by a provider licensed in the same profession an having the same or similar specialty as that of the provider of the treatment under review. . . . Act of July 2, 1993, P.L. 190, as amended, 77 P. S. § 531(6).
Report of Dr. Behrend, March 17, 1995, at 2, 3.
On April 8, 1995, Claimant filed a timely Utilization Review Reconsideration Request (UR-II) with the Bureau. The URO designated Dr. Jess P. Armine, R.N., D.C., as the chiropractor to perform the second review of Dr. Welch's treatment of Claimant. Dr. Armine reviewed Claimant's medical treatment records and also reached the conclusion that the treatment delivered by Dr. Welch was not reasonable or necessary. Dissatisfied with this outcome, Claimant filed a timely Utilization Review Petition on July 5, 1995. WCJ Michael W. Simon conducted a de novo hearing where Sarno had the burden of proving that Dr. Welch's treatment of Claimant was not reasonable or necessary. Claimant offered into evidence the medical records of Dr. Welch and Dr. Gnall and Sarno offered the reports from UR-I and UR-II. Prior to issuing a decision, WCJ Simon had to withdraw from the case due to illness. The Bureau appointed WCJ Joseph Grady to take over the case. Based on his review of the record, WCJ Grady issued a decision and order finding that Sarno met its burden of proving that Dr. Welch's treatment was not reasonable or necessary.
Sarno initiated Claimant's utilization review prior to enactment of the Act 57 amendments, which eliminated the reconsideration phase of the utilization review process. Act of June 24, 1993, P.L. 350, as amended, 77 P. S. § 531(6).
Pursuant to its rule making function, the Bureau promulgated a series of rules and regulations governing the utilization review process on November 11, 1995. Section 127.556 specifies that the hearing on the Utilization Review Petition shall be a de novo proceeding and the WCJ will not be bound by the URO reports. 34 Pa. Code § 127.556.
Claimant's allegation of error resulting from the Bureau's reassignment of the case to WCJ Grady is completely without merit. Section 415 of the Act expressly provides that at any time prior to issuance of an order disposing of a petition, the Bureau may reassign the case to a second WCJ and any testimony taken before the original WCJ shall be considered taken before the substituted WCJ. Our Supreme Court upheld this provision in the case of Arena v. Package Systems Corp., 510 Pa. 34, 507 A.2d 18 (1986), concluding that all WCJs have developed substantial workers' compensation expertise and are equally capable of resolving the merits of a given case.
77 P. S. § 851.
This Court has subsequently addressed the issue of due process regarding WCJ substitution. In Biagini v. Workmen's Compensation Appeal Board (Merit Contracting Co.), 632 A.2d 956 (Pa.Commw. 1993), this Court concluded that mere allegation of a lack of due process is not sufficient, there must be a showing of how the substitution has prejudiced a party's claim.
Claimant's second argument is equally without merit. Claimant asserts that Sarno waived its right to utilization review when an agent of its insurance carrier, Ohio Casualty, allegedly authorized Claimant to begin treating with Dr. Welch. Assuming arguendo that WCJ Grady had established this uncorroborated hearsay conversation as fact in his decision, it would only establish that Sarno had acted in accordance with its statutory duty. Section 306(f.1)(5) requires that an employer or insurer shall pay medical bills for treatment of any work-related injury within 30 days of submission. Section 306 (f.1)(5) further provides that the only way to obviate this requirement is to dispute the reasonableness or necessity of certain medical treatment via the utilization review process outlined in § 306(f.1)(6). Authorization of treatment sought for a work-related injury and payment of the resulting medical bills in no way serves to estop a future challenge of the reasonableness or necessity of that treatment, provided the initial request is filed within 30 days of receipt of the bill.
77 P. S. § 531(5).
This brings us to Claimant's third argument. Claimant asserts that Sarno failed to comply with the requirement that the Utilization Review (UR) Initial Request must be filed within 30 days of receipt of the treatment bill in question. Bureau regulation § 127.404 addresses the timeliness issue regarding retrospective review and provides in pertinent part:
(b) If an insurer or employer seeks retrospective review of treatment, the initial 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.
Sarno counters that Claimant failed to raise this issue before either the WCJ or the Board, and therefore, has waived the issue for purposes of appeal. Claimant maintains that the 30-day filing requirement is a timeliness issue which cannot be waived. We disagree with Claimant's position. Failure of an employer or insurer to file the UR Initial Request within 30 days of receipt of the bill constitutes grounds for the Bureau to deny the request or have the URO determination overturned by the WCJ on a Utilization Review Petition. However, the 30-day filing requirement of § 127.404 does not constitute a jurisdictional issue which cannot be waived. This issue must be raised before the WCJ to be preserved for appeal.
Claimant next argues that the WCJ should be precluded from considering the two URO reports since they were not timely filed in violation of 34 Pa. Code § 131.52(a). Section 131.52(a) is a Bureau regulation designed to provide the WCJ a vehicle for planning and managing the discovery and litigation process of the petition at issue. Specifically, this provision requires that within 45 days of the first hearing the moving party shall provide the WCJ with notice of any pleading amendments, stipulations of fact, witness information, dates of depositions, exchange of evidentiary documents and other related matter. Claimant interprets this provision as requiring that all evidence be submitted within 45 days of the first hearing including all medical reports. The Board responded to this assertion by recognizing that Sarno did not timely file its "45 day information" which included the UR-I and UR-II reports. However, the Board correctly held that any error resulting from this failure was harmless since the WCJ had previously admitted both URO reports into evidence at the first hearing.
Claimant raises the final argument that the URO doctor must examine all medical records relevant to treatment of the work-related injury, which is the subject of the utilization review. The Bureau promulgated regulations addressing the issue of which medical records a URO doctor must review. These regulations provide in pertinent part:
§ 127.407. Extent of review of medical records.
(a) In order to determine the reasonableness or necessity of the treatment under review, UROs shall obtain for review all available records of all treatment rendered by all providers to the employe for the work-related injury. However, the UR determination shall be limited to the treatment that is subject to review by the request.
(b) UROs may not obtain or review medical records of treatment which are not related to the work injury.
§ 127.459. Obtaining medical records — provider under review.
(a) A URO shall request records from the provider under review in writing. The written request for records shall be by certified mail, return receipt requested. In addition, the URO may request the records from the provider under review by telephone.
(b) The medical records of the provider under review may not be requested from, or supplied by, any source other than the provider under review.
§ 127.460. Obtaining medical records — other treating providers.
(a) A URO shall request records from other treating providers in writing. In addition, the URO may request records from other treating providers by telephone.
(c) If a URO is not able to obtain records directly from the other treating providers, it may obtain these records from the insurer, the employer or the employe.
§ 127.462. Obtaining medical records — duration of treatment.
UROs shall attempt to obtain records from all providers for the entire course of treatment rendered to the employe for the work-related injury which is the subject of the UR request, regardless of the period of treatment under review.
Claimant asserts that neither Dr. Behrend nor Dr. Armine had access to the medical records relevant to his previous ten-year course of treatment for his March 28, 1984 injury. Sarno counters that both doctors reported that they were aware of Claimant's prior course of treatment and that reviewing the actual medical records would not result in Dr. Welch's treatment being any more reasonable or necessary. We find Sarno's argument unpersuasive and conclude that the Bureau expressed a clear requirement through its repeated use of the word "shall," which prescribes mandatory as opposed to discretionary action. Clearly, the Bureau intended that reviewing doctors assess the reasonableness and necessity of a current treatment program in the context of the entire course of treatment for the injury in question. In his UR-I report, Dr. Behrend underscores the importance of this contextual review in concluding:
The General Assembly authorized the Bureau pursuant to §§ 401.1 and 435 to adopt rules and regulations as it finds necessary or desirable for the enforcement of the Act. 77 P. S. § 710 and 991.
There is no discussion of the patient's previous treatment plan or clinical outcome. Considering the patient's history, this would have been appropriate. The records do not provide an adequate rationale to continue the treatment protocol provided by Dr. Welch.
Report of Dr. Behrend, March 17, 1995, at 3.
Likewise, in his UR-II report, Dr. Armine indicated that the lack of documentation justifying continued care contributed to his determination that Dr. Welch's treatment was not reasonable or necessary. Dr. Armine stated:
There is no documentation showing that this patient required/obtained care on a reasonably continuous basis from the accident in 1984 to the present time. According to the initial intake forms the patient indicates that he had care for approximately 3 years post accident but follow up care after that is vague at best. Further there is no objective documentation, diagnostic findings, etc. showing [sic] that would lead one to conclude that this patient would require ongoing chiropractic care.
Report of Dr. Armine, May 29, 1995, at 2.
The statements of both reviewing doctors indicate that the lack of a complete medical history precluded them from understanding Dr. Welch's treatment in the context of prior treatment. This lack of a complete picture factored into their respective conclusions that Dr. Welch's treatment of Claimant was not reasonable or necessary. This result accentuates the importance of examining the treatment under review in the context of the entire course of treatment as required by the Bureau's regulations.
The regulations relating to review of medical records within the UR process place a burden on the URO to obtain all available medical records from all treating providers regarding the treatment under review. However, we note that the Bureau has also placed a burden of timely production of medical records on Claimant's treating provider. Section 127.464 provides in pertinent part:
§ 127.464. Effect of failure of provider under review to supply records.
(a) If the provider under review fails to mail records to the URO within 30 days of the date of request of the records, the URO shall render a determination that the treatment under review was not reasonable or necessary. . . .
Essentially, when read collectively these regulations require the URO doctor to review all available medical records regarding the treatment under review unless the treating physician fails to supply these records within 30 days, in which case the URO will deem the treatment not reasonable or necessary.
Accordingly, we vacate the Board's order and remand with direction that the Board remand to the WCJ for a rehearing on the Utilization Review Petition addressing the issue of whether the URO properly requisitioned all of Claimant's available medical records regarding the treatment under review, and if so, whether Claimant's treating physician complied with the 30-day response requirement.
II
Claimant also appeals pro se from an order of the Board that affirmed the decision and order of WCJ Grady, which awarded compensation benefits for Claimant's knee injury but denied that his alleged ankle and hip injuries were compensable. WCJ Grady awarded Claimant temporary total disability compensation in the amount of $227.50 per week beginning September 16, 1992 and continuing thereafter subject to the limitations of the Act. Claimant presents two issues for our review. First, whether WCJ Grady's decision and order are supported by substantial evidence of record, and second, whether the Board erred in denying Claimant's request for a remand and rehearing.
WCJ Simon conducted a hearing on December 12, 1994, at which Claimant testified and presented the deposition testimony of Christopher Metzger, M.D., an orthopedic surgeon. Claimant testified that he began working for Acker Associates, Inc. (Acker Associates) as a survey assistant in November 1989. Claimant's duties included loading a truck with equipment and frequently moving the equipment during a survey. The various equipment weighed as much as fifty pounds. Claimant further testified that on August 19, 1992, he slipped and fell on muddy ground while returning to the survey truck. Claimant immediately experienced discomfort and subsequently experienced swelling and extreme pain in his right knee. Claimant cancelled a doctor's appointment the following day after the swelling began to subside. Claimant began treating with Dr. Cooper on September 9, 1992, because the pain and swelling had recurred. Dr. Cooper prescribed medication to ease the pain and swelling and recommended that Claimant obtain an MRI of his right knee. Claimant ceased working for Acker Associates on September 16, 1992 and was subsequently terminated.
As with Claimant's URO case, his Claim Petition was assigned to WCJ Simon who conducted the hearing and received all evidence but had to withdraw from the case for health reasons. The Bureau reassigned the case to WCJ Grady who reviewed the evidence and prepared the decision and order.
Claimant stated that he began treating with Dr. Cesare in February 1993, complaining of continued difficulty with his right knee and the onset of ankle and hip problems. Dr. Cesare diagnosed Claimant as suffering from chondromalacia for which he prescribed medication and an exercise program and referred Claimant to Dr. Metzger for arthroscopic surgery. Dr. Metzger's deposition testimony indicated that he performed an arthroscopic examination of Claimant's right knee on September 2, 1993, which confirmed the presence of chondromalacia. Claimant also presented symptoms of ankle and hip pain. After a course of conservative treatment, Dr. Metzger concluded that Claimant's knee required surgery but that his ankle and hip had responded well to treatment. On April 7, 1994, Dr. Metzger performed an open lateral retinacular release to relieve pressure from Claimant's kneecap and mitigate the chondromalacia. Claimant's post-operative regimen included a twelve-week physical therapy program. Dr. Metzger opined that Claimant's chondromalacia resulted from his August 19, 1992 work injury since he did not possess any predisposing factors which would indicate development through a natural degenerative process.
Metzger testified that chondromalacia is a knee condition denoted by a softening, fissuring or roughness of the Dr underside of the kneecap, known as articular cartilage. Dr. Metzger stated that chondromalacia can develop either through trauma to the knee or over time through a natural degenerative process. (Deposition of Dr. Metzger, at 10, 17-18).
Acker Associates presented the deposition testimony of Joseph R. Sgarlat, M.D., an orthopedic surgeon. Dr. Sgarlat conducted independent medical examinations of Claimant on behalf of Acker Associates on June 3, 1993 and December 13, 1994. Dr. Sgarlat opined that Claimant's knee injury was nothing more than a sprain from which Claimant had fully recovered prior to Dr. Metzger's surgical procedure in April 1994. Dr. Sgarlat further testified that Claimant's chondromalacia condition was the result of a natural degenerative process.
Deposition of Dr. Sgarlat, at 17-18.
Following WCJ Simon's withdrawal from the case for health reasons, the Bureau reassigned the case to WCJ Grady. Upon reviewing the record, WCJ Grady credited the testimony of Claimant and Dr. Metzger. WCJ Grady specifically discredited the testimony of Dr. Sgarlat to the degree it conflicted with Dr. Metzger's testimony. (Finding of Fact No. 24). WCJ Grady found that Claimant injured his right knee as a result of his August 19, 1992 slip and fall but concluded that Claimant failed to establish that he also injured his ankle or hip when he fell. (Finding of Fact No. 25). Claimant timely appealed the WCJ's decision and order to the Board. The Board affirmed in an order issued February 10, 1998, finding that substantial evidence supported the WCJ's order. Claimant now appeals the Board's order to this Court.
WCJ Decision, June 19, 1996, Finding of Fact Nos. 23-24, at 6.
Substantial evidence has been defined as such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Jordon v. Workers' Compensation Appeal Board (Consolidated Electrical Distributors), 550 Pa. 232, 704 A.2d 1063 (1997).
Our scope of review is limited to determining whether constitutional rights were violated, errors of law were committed or whether necessary findings of fact are supported by substantial competent evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
On appeal Claimant argues that WCJ Grady erred in discrediting that portion of his testimony regarding his alleged ankle and hip injury. Claimant essentially maintains that WCJ Grady ignored Dr. Cesare's continued treatment of his ankle and hip problems and that WCJ Grady failed to "recognize the corroboration of the medical records of Dr. Joseph Cesare. . . ." (Claimant's Brief at 4, 5). Claimant's argument is completely without merit, particularly in light of the fact that Dr. Cesare did not testify. As Acker Associates correctly asserts, the WCJ as fact-finder can accept or the testimony of any witness in whole or in part, including medical witnesses. Sellari v. Workers' Compensation Appeal Board (NGK Metals Corp.), 698 A.2d 1372 (Pa. Commw. 1997). The medical records of Dr. Cesare are not part of the record and were only referenced in testimony discredited by WCJ Grady, a credibility determination which we may not be disturb on appeal. Moreover, WCJ Grady's determination that Claimant's ankle and hip problems are not related to his August 1992 slip and fall has ample support in the record. Claimant testified that he injured his ankle in a separate incident in May 1992 for which he never filed a workers' compensation claim. Claimant also never mentioned any problem with his ankle or hip when he began receiving treatment for his knee injury. We conclude that WCJ Grady's decision and order has the requisite support in the record.
Turning to Claimant's second argument alleging that the Board erred by not granting his request for a rehearing, Claimant maintains that a rehearing is warranted because he had inadequate legal representation. It is within the discretion of the Board to grant or deny a request for rehearing and we may only reverse where the Board's decision amounts to an abuse of discretion. Cudo v. Hallstead Foundry, Inc., 517 Pa. 553, 539 A.2d 792 (1988). Claimant asserts that his former counsel provided ineffective representation when he failed to depose Dr. Cesare or to properly prepare Dr. Metzger to testify regarding his alleged ankle and hip injuries. Claimant argues that based on his former counsel's failings we should grant him a second bite at the apple in the interest of justice. What Claimant failed to do before the Board, and again before this Court, is demonstrate how this additional evidence would do anything more than strengthen weak proofs already presented on the issue of his ankle and hip injuries. See Paxos v. Workmen's Compensation Appeal Board (Frankford Quaker Grocery), 631 A.2d 826 (Pa.Commw. 1993). Claimant developed a record regarding his ankle and hip problems and WCJ Grady concluded that these injuries did not arise out of his August 19, 1992 work injury. We conclude that the Board's decision not to grant a rehearing does not constitute an abuse of discretion.
Accordingly, we affirm the Board's order upholding the WCJ's decision and order, which granted Claimant's Claim Petition regarding his August 19, 1992 knee injury and denied compensation benefits regarding his alleged ankle and hip injuries.
ORDER
AND NOW, this 19th day of February, 1999, we vacate the order of the Workers' Compensation Appeal Board, bearing docket number A96-2697, and remand with direction that the Board remand to the WCJ for a rehearing on the Utilization Review Petition consistent with the holding of this opinion, and further, we affirm the order of the Workers' Compensation Appeal Board, bearing docket number A96-2698, which upheld the WCJ's grant of the Claim Petition regarding Claimant's August 19, 1992 knee injury and denied compensation benefits regarding his alleged ankle and hip injuries.
Jurisdiction Relinquished.
EMIL E. NARICK, Senior Judge