N. Miloser v. WCAB (Remacor, Inc.) ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nicholas Miloser, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Remacor, Inc.), : No. 980 C.D. 2017
Respondent : Submitted: November 22, 2017
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: March 12, 2018
Nicholas Miloser (Claimant) petitions this Court for review of the
Workers’ Compensation (WC) Appeal Board’s (Board) June 28, 2017 order
affirming the Workers’ Compensation Judge’s (WCJ) decision granting in part and
denying in part Claimant’s Utilization Review (UR) Review Petition (Petition).
Claimant presents two issues for this Court’s review: (1) whether Remacor, Inc.
(Employer) met its burden of proof on Claimant’s Petition; and, (2) whether the WCJ
erred by relying on medical literature that was not part of the record. After review,
we affirm.
Claimant sustained an injury on August 18, 2006, in the course of his
employment with Employer. On September 14, 2006, Employer issued a Notice of
Temporary Compensation Payable describing Claimant’s injuries as multiple physical
injuries - neck and right arm. In a May 19, 2010 decision, the WCJ approved an
indemnity-only Compromise & Release Agreement, under which Employer remained
responsible for all reasonable, necessary, and causally-related medical benefits for the
August 18, 2006 work injury. Subsequently, Employer filed a UR Request with the
WC Bureau seeking review of the reasonableness and necessity of all of Claimant’s
office visits and medications provided, and/or treatments rendered, and/or otherwise
planned by J. Fred Stoner, M.D. (Dr. Stoner) from September 3, 2015 and into the
future. In a December 30, 2015 UR Determination, Rene Rigal, M.D. (Dr. Rigal)
opined that none of Dr. Stoner’s care was reasonable or necessary for Claimant’s
work injury.
On January 20, 2016, Claimant filed his Petition seeking a review of Dr.
Stoner’s care from September 3, 2015 forward. A WCJ hearing was held on
February 23, 2016. On July 1, 2016, the WCJ affirmed the Petition with respect to
Claimant’s ongoing use of opiate compounds, i.e., Kadian and Opana, because it is
unreasonable and unnecessary, but denied the Petition as to other treatment
modalities because they are reasonable and necessary. Claimant appealed to the
Board. On June 28, 2017, the Board affirmed the WCJ’s decision. Claimant
appealed to this Court.1
Initially, “[t]he [UR] process provides an avenue for challenging
whether medical treatment provided under the [WC] Act (Act)[2] is reasonable and
necessary. Section 306(f.1)(6)(i) [of the Act], 77 P.S. § 531(6)(i). In [UR], the
employer bears the burden of proving that the challenged medical treatment is
unreasonable or unnecessary.” Haslam v. Workers’ Comp. Appeal Bd. (London
Grove Commc’n), 169 A.3d 704, 708 (Pa. Cmwlth. 2017).
1
“On review[,] this Court must determine whether constitutional rights were violated, errors
of law were committed, or necessary findings of fact were supported by substantial competent
evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6
(Pa. Cmwlth. 2014).
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
2
Claimant first argues that Employer did not meet its burden of proving
that Dr. Stoner’s opioid prescriptions for Claimant’s work injury are unreasonable or
unnecessary, because Dr. Rigal testified that Kadian is not reasonable and necessary
for occasional or short-term use, but Claimant does not use it in that fashion. Further,
Claimant contends that Dr. Rigal declared that Opana is only used when other
treatments do not work, but that is why Claimant takes it.
The law is well-settled that “[t]he WCJ has exclusive authority to act as
fact finder, determine credibility of witnesses, and weigh the evidence. The WCJ’s
findings will not be disturbed if they are supported by substantial, competent
evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99
A.3d 598, 601 n.6 (Pa. Cmwlth. 2014) (citation omitted). “Substantial evidence has
been defined as such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id.
Contrary to Claimant’s argument, Dr. Stoner specifically prescribed
Kadian “200mg 3 tablets twice a day [pro re nata3 (]prn[)] for pain” and Opana
“[extended release] ER 40 mg 1 tablet once a day prn for pain[.]” Reproduced
Record (R.R.) at 50a (emphasis added). Dr. Rigal expressly reported that Kadian
is used to help relieve chronic moderate to severe ongoing
pain and belongs to a class of drugs known as narcotic
(opiate) analgesics. It works in the brain to change how the
body feels and responds to pain. This medication is not
for occasional ‘as needed’ or short term use and this dose
and frequency [is] in excess of ordering guidelines . . . .
R.R. at 69a (emphasis added). Dr. Rigal further explained that Opana
is also a narcotic (opioid) pain medicine only for use when
other pain treatments do not treat pain well enough or they
cannot be taken. It works in the brain and nervous system
to reduce pain and only for use when continuous (around-
the-clock) treatment is needed for a long time.
3
Pro re nata is Latin for as the thing is needed.
3
Id. (emphasis added). The fact that both Kadian and Opana were prescribed for
Claimant “as needed” is clearly contrary to Dr. Rigal’s opinion that Kadian is not
prescribed to be used as needed and Opana is only for long-term, around-the-clock
use. The WCJ determined that “the conclusion of Dr. Rigal to the effect that the
continuing use of opiate medication is contraindicated has been deemed credible, and
accepted[.]” R.R. at 19a. Accordingly, Employer met its burden of proof on
Claimant’s Petition by presenting Dr. Rigal’s report.
Claimant next contends that the WCJ erred by relying on medical
literature that was not part of the record. Specifically, the WCJ declared:
[T]he academic medical literature is replete with highly
credible commentary and conclusions supported by
voluminous clinical studies to the effect that opiate
medication should be utilized in very limited
circumstances and for relatively short durations of time.
The medical community is virtually in complete
agreement with this assessment.
[C]laimant’s use of opiate compounds has endured
considerably beyond the timeframe acknowledged as
clinically appropriate, and accordingly, the conclusion of
Dr. Rigal to the effect that the continuing use of opiate
medication is contraindicated has been deemed credible,
and accepted, and is supported, as reviewed above, in the
voluminous clinical studies supportive of this contention.
As such, ongoing use of opiate compounds is deemed
unreasonable and unnecessary, for all of the reasons
reviewed by Dr. Rigal in the report of December 30, 2015,
as well as those reviewed above.
R.R. at 18a-19a (emphasis added). Claimant asserts that because the WCJ did not
specify what medical literature or clinical studies he was referring to, and no medical
literature or clinical studies were made part of the record, there is no evidence to
support the WCJ’s ruling. The Board opined: “We agree that the WCJ did not
provide specific medical literature or clinical studies, and none were made part of the
record. However, this is harmless error.” Board Dec. at 6.
4
Claimant maintains that the error is not harmless because the WCJ relied
on this finding as support for Dr. Rigal’s credibility on the issue of opiate medication.
We disagree. Although the WCJ erred in citing to the medical literature, the WCJ
unequivocally stated that “ongoing use of opiate compounds is deemed unreasonable
and unnecessary, for all of the reasons reviewed by Dr. Rigal in the report of
December 30, 2015[.]” R.R. at 19a (emphasis added). In addition, Dr. Rigal, in
support of her report, reviewed Dr. Stoner’s records, as well as medical literature,
including but not limited to:
American Society of Anesthesiologists Task Force on
Chronic Pain Management, American Society of Regional
Anesthesia and Pain Medicine, Practice Guidelines for
Chronic Pain Management: An updated report by the
American Society of Anesthesiologists Task Force on
Chronic Pain Management and the American Society of
Regional Anesthesia and Pain Medicine, Anesthesiology,
2010; Volume 112(4): pages 810-833.
R.R. at 73a. This Court holds that because all necessary findings made by the WCJ
are supported by substantial evidence, the mention of medical literature and clinical
studies “was mere surplusage and was, therefore, harmless error.” Gallo v.
Workmen’s Comp. Appeal Bd. (United Parcel Serv.), 504 A.2d 985, 988 (Pa.
Cmwlth. 1986).
For all of the above reasons, the Board’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nicholas Miloser, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Remacor, Inc.), : No. 980 C.D. 2017
Respondent :
ORDER
AND NOW, this 12th day of March, 2018, the Workers’ Compensation
Appeal Board’s June 28, 2017 order is affirmed.
___________________________
ANNE E. COVEY, Judge