D. Fanning v. WCAB (Lower Merion School District) ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Daniel Fanning, :
Petitioner :
:
v. : No. 992 C.D. 2018
: Submitted: April 9, 2019
Workers’ Compensation Appeal :
Board (Lower Merion School District :
and John Carr Electric and School :
District Insurance Consortium and :
Harleysville Insurance Company), :
Respondents :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE COVEY, Judge (P.)
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: May 2, 2019
Daniel Fanning (Claimant) petitions for review of the Order of the Workers’
Compensation Appeal Board (Board) that affirmed the decision of Workers’
Compensation Judge (WCJ) Makin (WCJ Makin) denying and dismissing
Claimant’s Petition to Review the Utilization Review (UR) Determination (UR
Petition) and Petition for Penalties (Penalty Petition). WCJ Makin concluded, on
the UR Petition, that the doctrines of res judicata and collateral estoppel did not
preclude Brian Cicuto, D.O., the UR physician, from finding the challenged
medical treatment not medically reasonable and necessary. On the Penalty
Petition, WCJ Makin held that Claimant did not meet his burden of proving a
violation of the Workers’ Compensation Act1 (Act). On appeal, Claimant argues
the current UR Determination is barred by res judicata or collateral estoppel
because the medical treatment currently being challenged was previously
challenged and found, by two other WCJs (WCJ Burman and WCJ Callahan) and
by Dr. Cicuto in a 2015 UR Determination, to be reasonable and necessary and,
there being no change in Claimant’s condition, those decisions are binding. He
further asserts that WCJ Makin erred in excluding the 2015 UR Determination
from evidence. Claimant also argues that it was a violation of the Act for Lower
Merion School District and its insurer, School District Insurance Consortium
(together, District), and John Carr Electric and its insurer, Harleysville Insurance
Company (together, John Carr), to seek a new UR for treatment already found to
be reasonable and necessary. Upon review, we are constrained to affirm.
I. Background
A. Facts and Procedure
Claimant injured his back while working for John Carr as an electrician on
October 7, 1987. He again injured his back while working for District on March
15, 2001. By an earlier WCJ decision, Claimant’s injuries were determined to be
indivisible and both John Carr and District were equally responsible for those
injuries. On December 18, 2015, District filed a UR Request, seeking review of
the treatment given to Claimant by Don Koenigsberg, D.O., “including but not
limited to, office visits, injections, and medications provided to Claimant from
October 14, 2015 and ongoing.” (WCJ Makin Decision, Finding of Fact (FOF) ¶
2.) Dr. Cicuto issued the current UR Determination on February 19, 2016, finding,
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 - 1041.4, 2501-2710.
2
relevant here, that the “continued prescriptions for OxyContin 40 mg every 12
hours, Oxycodone 30 mg[] [4] times a day and Oxycodone 15 mg[] [3] times a day
and Valium 10 mg[] daily were not reasonable or necessary from October 14, 2015
and ongoing.” (Id. ¶ 3.) Claimant filed the UR Petition challenging Dr. Cicuto’s
determination and the Penalty Petition alleging that District violated the Act by
filing the UR request “despite the fact that the treatment it requested to be
reviewed . . . was already determined to be reasonable and necessary . . . .” (Id. ¶
5.)
WCJ Makin held various hearings, at which District and Claimant presented
documentary evidence, and John Carr participated. District presented Dr. Cicuto’s
current UR Determination and some of Dr. Koenigsberg’s records. Claimant
offered additional records from Dr. Koenigsberg, and, in support of his assertion
that res judicata or collateral estoppel applied, the October 21, 2011 decision of
WCJ Burman, and the August 28, 2014 decision of WCJ Callahan. At the last
hearing on July 25, 2016, after which the record would be closed, Claimant sought
to introduce documents related to the 2015 UR Determination. Claimant presented
a UR request filed by District on February 11, 2015, which sought review of the
treatment Dr. Koenigsberg provided Claimant on December 29, 2014, and the
2015 UR Determination of Dr. Cicuto, mailed on April 17, 2015, finding that one
day of treatment reasonable and necessary. (Reproduced Record (R.R.) at 46-47,
50.) John Carr objected, asserting these materials were not relevant because they
“concern[ed] treatment as of a certain date” and “[t]he only thing that’s relevant to
these proceedings is the treatment that was under review” in the current UR
Determination. (Id. at 47.) While noting that Dr. Cicuto issued both
determinations, John Carr stated “the period of time is different.” (Id.) Claimant
3
responded that he was introducing the 2015 UR Determination because he believed
“the historical basis for this is very important for [WCJ Makin’s] understanding as
to what’s been going on in this litigation.” (Id. at 49.) Claimant also argued that,
in order to file a new UR request for the same treatment, District or John Carr had
to show “that there’s a change in circumstances concerning his condition.” (Id. at
48.) WCJ Makin sustained the objection and excluded the 2015 UR Determination
because she did not “believe that, just because [the treatment] was reasonable and
necessary in the past, it continues to be reasonable and necessary as of the date of
the current UR . . . .” (Id. at 49.) She directed Claimant to upload the 2015 UR
Determination as an exhibit, but it was not admitted. (Id. at 50.) WCJ Makin
admitted the decisions of WCJs Burman and Callahan. (Id. at 49.)
Following the close of the record, WCJ Makin reopened the record to allow
“for the appointment of an impartial pain management physician to review the
record and perform an examination of Claimant.” (FOF ¶ 9.) The parties agreed
on an examination by Gregory H. Pharo, D.O., who would provide an opinion on
the challenged treatment’s reasonableness and necessity. After Dr. Pharo’s
appointment, but before he issued his report, Claimant again attempted to submit
the 2015 UR Determination. (Id. ¶ 10.) John Carr and District objected to the
opening of the record for evidence from the parties, and WCJ Makin sustained the
objection. WCJ Makin observed that Claimant “preserved [his] objection relying
on C.D.G., I[nc. v. Workers’ Compensation Appeal Board] (Mc[A]llister),
702[]A.2d 873[](Pa. Cmwlth. 1997).” (Id.) WCJ Makin found C.D.G., which
applied collateral estoppel to a UR proceeding, inapplicable because “it does not
explain Claimant’s counsel’s failure to offer the exhibit during the trial of this
matter when proper rebuttal could have been submitted by opposing counsel.”
4
(Id.) WCJ Makin stated, further, that “[t]his does not meet the criteria for after[-]
discovered evidence that was not available to Claimant’s counsel prior to the close
of the record.” (Id.)
B. WCJ Makin’s Decision
In the Decision, WCJ Makin summarized the evidence as follows. Dr.
Cicuto2 was assigned to review the reasonableness and necessity of Dr.
Koenigsberg’s treatment of Claimant, including medications, from October 14,
2015, and ongoing. Dr. Cicuto recited a history of Claimant’s two work injuries,
noting that Claimant began treating with Dr. Koenigsberg on March 13, 2010, at
which time Claimant complained of a pain level of 10 out of 10. Dr. Cicuto
reviewed various records from Dr. Koenigsberg but did not request a telephone
discussion with Dr. Koenigsberg. Dr. Cicuto noted that between March 13, 2010,
and September 3, 2015, Claimant had seen Dr. Koenigsberg 23 times. Claimant’s
medications changed in amount and type throughout the course of Dr.
Koenigsberg’s treatment. Claimant’s prescriptions as of a November 9, 2015
appointment, at which Claimant rated his pain at 7 or 8 out of 10, were for a 3-
month supply of “Mobic 7.5 mg[] twice daily; Valium 10 mg[] daily; Cymbalta 30
mg[] twice daily; Oxycodone 30 mg[] four times a day; OxyContin 40 mg[] every
twelve hours; and [O]xycodone 15 mg[] three times a day as needed.”3 (Id. ¶ 14.)
2
The summary of Dr. Cicuto’s UR Determination is found in FOF ¶¶ 11-15. Dr.
Cicuto’s report is found at pages 3-9 in the Reproduced Record.
3
Per Dr. Cicuto’s UR Determination, Claimant’s medications previously had been:
OxyContin 80 mg[] one three times a day, Dilaudid 4 mg[] three times a day,
Valium 10 mg[] one daily, Roxicodone 30 mg[] three times a day, a flector patch
topically twice a day, Flexeril 10 mg[] twice a day, Prilosec 10 mg[] one daily,
and Mobic 7.5 mg[] twice a day. OxyContin 80 mg[] was changed to twice a day
and an additional Oxycodone 30 mg[] was added per day. Dilaudid was later
(Footnote continued on next page…)
5
Dr. Cicuto’s review of Dr. Koenigsberg’s records revealed that in 2012, a message
was left revealing “that Claimant’s opioid medication was ‘lost or missing.’” (Id. ¶
12.) In 2013, an office notice reflected that Claimant’s medication package “was
sliced open and the ‘meds were taken out (stolen),’” requiring the replacement of
his medications, including the narcotics. (Id.)
After reviewing the medications prescribed during the review period, their
side effects, and their purposes, Dr. Cicuto concluded the Mobic and Cymbalta
prescribed, as well as the office visits with Dr. Koenigsberg every three months,
were reasonable and necessary. The continued prescription of the opioid
medications and Valium, Dr. Cicuto opined, was not reasonable or necessary.
According to Dr. Cicuto, “OxyContin is considered a last resort treatment for
chronic non cancer pain”; “[d]osages should reflect a significan[t] change in the
use of opioids which includes using the lowest dose possible”; requires
“documenting an improvement in function with the medication”; and requires
“adequate follow up visits, random urine drug screens to monitor compliance with
the use of the medication[,] and pill counts.” (Id. ¶ 15.) Dr. Cicuto noted that
there was no evidence in the records that random screens of Claimant were
performed or that pill counts were used, even though there were two instances
when Claimant’s medications were lost or stolen. As for the Valium, Dr. Cicuto
observed this medication is now indicated for the treatment of anxiety and seizure,
not as a muscle relaxer or for pain-related sleep disturbance, as is being used here.
_____________________________
(continued…)
changed to twice a day and the Oxycodone 30 mg[] increased to five a day.
OxyContin 80 mg[] was converted to Opana ER, 40 mg[] twice a day then
increased to three times per day.
(FOF ¶ 11.)
6
Dr. Pharo4 examined Claimant in December 2016, taking a history from
Claimant of his work injuries and treatment for those injuries, as well as his daily
living activities. Claimant lives with his wife and grandchild, of whom he has
custody, and can perform activities of daily living, lift up to 15 pounds, and, for 30
minutes each, walk, drive, and grocery shop. Claimant’s narcotic medication and
Valium dosages as of the December 2016 examination were the same as those
listed as current by Dr. Cicuto’s current UR Determination.5 Claimant recounted
once losing some of his Oxycodone while fishing with his grandchild and once
having to replace his Valium when it fell onto the bathroom floor. Claimant does
not receive physical therapy or chiropractic treatment, use a TENS unit, exercise,
or perform stretching exercises.
At Dr. Pharo’s examination, Claimant complained of pain at a level of 7 out
of 10, which can be decreased by lying down and taking medications. Claimant
used a walking stick and wore a lumbar support brace. Noting that the work injury
and diagnosis were not in dispute, Dr. Pharo opined that the visits every three
months and the prescriptions for Cymbalta and Meloxicam (another name for
Mobic) were reasonable and necessary. Dr. Pharo explained that “[a]lthough Dr.
Koenigsberg has slowly weaned Claimant from higher doses of opioids where he
initially started, [Claimant] remains on extremely high doses of opioid
medications,” including Oxycodone, the current prescription of which is three
times the highest dose recommended by the American Medical Association. (Id. ¶
4
The summary of Dr. Pharo’s report is found in FOF ¶¶ 16-17. There are two paragraph
17s in WCJ Makin’s Decision, both refer to Dr. Pharo’s report. Dr. Pharo’s report is found at
pages 87-90 of the Reproduced Record.
5
It appears that Claimant’s use of Mobic went from twice daily to once daily between the
current UR Determination and Dr. Pharo’s report. (R.R. at 88-89.)
7
17.) Finally, “Dr. Pharo opined that Claimant should be weaned from the current
morphine equivalent doses of 360 to 100 per day,” which should be “accomplished
over six months not several years,” and that “the use of urine drug screens would
be reasonable and necessary.” (Id.)
Dr. Koenigsberg’s typed reports, submitted by Claimant,6 document
Claimant’s treatment from March 15, 2010, which is consistent with what
Claimant told Dr. Pharo and was reviewed by Dr. Cicuto. In those records was a
report, undated, indicating a letter of medical necessity for lysis of adhesions and
explaining why such treatment would benefit Claimant. A June 16, 2016 letter to
Claimant’s attorney indicated that Claimant’s “condition has not changed since the
last report that he [had] sent to Claimant’s attorney” and that Claimant continues to
need “narcotic therapy and intermittent back injections for control.” (Id. ¶ 18.)
WCJ Makin noted there was no evidence of Dr. Koenigsberg examining Claimant
prior to the June 16 letter or that Claimant had, during the period under review,
undergone any back injections. As for the records of Dr. Koenigsberg that District
presented,7 WCJ Makin noted, save for a few typed reports and the dates on the
records, the records were unreadable. Of these records that were readable, a report
dated February 4, 2016, reflects that an injection was performed and multiple
medications were prescribed.
WCJ Makin summarized the other WCJs’ decisions as follows. WCJ
Burman’s decision,8 issued on October 21, 2011, addressed a Petition to Review a
6
The summary of these records is in FOF ¶ 18. These records are found at pages 64-80
of the Reproduced Record.
7
The summary of these records is in FOF ¶ 19. These records are found at Certified
Record Item 24.
8
The summary of this decision is in FOF ¶ 7. WCJ Burman’s decision is found at pages
17-22 of the Reproduced Record.
8
Utilization Review Determination concerning Dr. Koenigsberg’s treatment of
Claimant. Dr. Cicuto reviewed that treatment, including the prescription of many
of the narcotics at issue in this matter, and expressed concern of the overuse of
narcotic medication. Dr. Cicuto opined that the narcotics “would no longer be
reasonable or necessary after Claimant completed a medical[ly] supervised
detoxification.” (Id. ¶ 7.) Due to the need for Claimant to undergo detoxification,
WCJ Burman found “Claimant’s continued receipt of drug therapy . . . reasonable
and necessary in part.” (Id.) WCJ Callahan’s decision,9 issued on August 28,
2014, denied the suspension petitions filed by District and John Carr on the basis
that Claimant refused to undergo reasonable medical treatment. They asserted that
Claimant should have undergone an inpatient or doctor directed detoxification
program and, when they offered Claimant such programs, Claimant refused. WCJ
Callahan credited Claimant’s testimony that he was willing to come off his pain
medications as soon as Dr. Koenigsberg tells Claimant he did not need them.
Following her review of the evidence, WCJ Makin did not find Dr.
Koenigsberg’s reports and records credible or persuasive, noting there were only a
few reports that were from the treatment period under review, typed, and legible,
one that reflects that Claimant’s condition had not changed, and a second that
requests to do an interventional procedure on Claimant. (Id. ¶ 20.) These records,
WCJ Makin found, were “internally inconsistent and erode[] Dr. Koenigsberg’s
opinion that Claimant’s condition has not changed,” which WCJ Makin rejected.
(Id.) WCJ Makin found Dr. Cicuto’s current UR Determination credible and
persuasive based on his review of numerous medical records, an employee
9
The summary of this decision is in FOF ¶ 8. WCJ Callahan’s decision, and the Board’s
affirmance of that decision, are found at pages 23-39 of the Reproduced Record.
9
statement, and literature and protocols about the use of opioids on a long-term
basis. (Id. ¶ 22.) WCJ Makin credited Dr. Pharo’s opinions to the extent they
corroborated the current UR Determination and “concerns that Claimant’s
narcotics are subject to being lost, stolen[,] or spilled on the bathroom floor” and
lack of pill counts or drug testing. (Id. ¶ 21.) WCJ Makin did not credit Dr.
Pharo’s opinion “that Claimant should continue to receive the narcotic medication
subject to a reduction plan” because, WCJ Makin explained, such plans have been
consistently “recommended but refused by Claimant.” (Id.) WCJ Makin found
that Claimant’s medications had changed since the decisions of WCJs Burman and
Callahan, which WCJ Makin found “would obviously come after a change in his
condition and thus, Claimant’s counsel’s argument” that the matter was governed
by collateral estoppel was without merit. (Id. ¶ 10.)
Based on the credited UR Determination, WCJ Makin held that District met
its burden of proving that Dr. Koenigsberg’s current prescriptions for opioids and
Valium for Claimant are not reasonable or necessary from October 14, 2015, and
ongoing. (Id. ¶ 23.) The other prescriptions and office visits every three months
were reasonable and necessary. (Id. ¶ 24.) Citing the medical opinions offered by
District and John Carr, WCJ Makin found their contests reasonable. Finally, WCJ
Makin denied the Penalty Petition, which was based on Claimant’s assertion that
no UR determination could be requested since there was no change in his
condition. WCJ Makin reasoned that “Claimant’s condition has been shown to
change by Dr. Koenigsberg’s own treatment recommendations” and “the excessive
doses of Oxycodone and Valium that Claimant is prescribed consistently coupled
with the theft, loss[,] and spilling” of those “medications which require them to be
10
replaced, justifies a review of their prescription.” (Id. ¶ 26.) Therefore, WCJ
Makin held that Claimant did not meet his burden of proving a violation of the Act.
C. The Board’s Opinion
Claimant appealed to the Board, arguing the current UR Determination was
barred by res judicata and collateral estoppel under C.D.G., and WCJ Makin erred
in ignoring the decisions of WCJs Burman and Callahan, as well as the 2015 UR
Determination, in accepting the UR Determination. The Board concluded that the
current UR Determination was not barred by res judicata or collateral estoppel.
First, the Board observed that WCJ Makin had sustained the objection to the 2015
UR Determination because it had not been offered when the record was open, and,
therefore, that determination was not in the record. (Board Op. at 6, 8.) Second,
Claimant’s reliance on WCJ Callahan’s decision was misplaced, the Board
concluded, because that decision involved a suspension petition, not a review of
the reasonableness and necessity of Claimant’s specific opioid prescriptions. (Id.
at 8.) Last, the Board found that, while WCJ Burman’s decision did address the
reasonableness and necessity of Claimant’s treatment on and after June 14, 2010,
and concluded, based on Dr. Cicuto’s opinion that Claimant’s opioid medications
would be no longer reasonable and necessary after the completion of a medically
supervised detoxification program, C.D.G. was distinguishable due to the amount
of time that passed between WCJ Burman’s decision in 2011 and the December
2015 UR request filed here. (Id. at 8-9.) The Board explained, citing this Court’s
opinion in Gary v. Workers’ Compensation Appeal Board (Philadelphia School
District), 18 A.3d 1282, 1287 n.7 (Pa. Cmwlth. 2011), that “the passage of time
11
may affect the reasonableness and necessity of a particular medical treatment, even
if the claimant’s medical condition had not changed.” (Id. at 9.)
Claimant further asserted that case law requires District and John Carr to
show a change in Claimant’s condition in order to request a UR, but they filed the
current UR request without showing that change. The Board rejected this
argument, noting that WCJ Makin found there was “credible evidence
establish[ing] that Claimant’s treatment regimen has, in fact changed, indicating a
change in condition” since the prior WCJ decisions. (Id. at 10.) Citing Gary, the
Board also noted the passage of time between WCJ Burman’s decision and the
current UR Determination and explained that “[c]ollateral estoppel is designed to
prevent relitigation of issues that have been decided and remained substantially
static, factually and legally,” which was not the case here. (Id.) Finally, finding
there was no violation of the Act apparent on the record, the Board found no error
in WCJ Makin’s denial of the Penalty Petition. Claimant now petitions this Court
for review.10
II. Claimant’s Appeal to this Court
A. The 2015 UR Determination
Claimant argues that WCJ Makin erred in excluding the 2015 UR
Determination because it was presented while the record was open and is relevant
to the current UR proceedings. Claimant asserts it was relevant because: in the
2015 UR Determination, Dr. Cicuto found that the December 29, 2014 prescription
10
This Court’s “review is limited to determining whether constitutional rights were
violated, whether the adjudication is in accordance with the law[,] or whether necessary findings
of fact are supported by substantial evidence.” City of Philadelphia v. Workers’ Comp. Appeal
Bd. (Sherlock), 934 A.2d 156, 159 n.5 (Pa. Cmwlth. 2007).
12
of the same opioid medications and Valium at issue in the current period being
reviewed, October 14, 2015, and ongoing, was reasonable and necessary; the short
amount of time between the 2015 UR Determination, issued in April 2015, and the
time period being reviewed in the current UR Determination; and the lack of
evidence demonstrating a change in Claimant’s condition. According to Claimant,
the purpose of applying res judicata and collateral estoppel in UR proceedings, as
explained in C.D.G., was to preclude the use of a “constant stream of utilization
review requests where the treatment and Claimant’s condition remain the same,
even though time has passed.” (Claimant’s Brief (Br.) at 13.)
John Carr and District argue Claimant waived any argument about the
exclusion of the 2015 UR Determination based on it being relevant by not raising it
in his appeal to the Board. District argues that Claimant did not preserve the issue
because, while he generally argued in his appeal to the Board that the exhibit’s
exclusion was erroneous, he did not argue that the exhibit should have been
admitted because it was relevant. (District’s Br. at 16-19.) Therefore, District
maintains, the current argument based on the relevancy of the 2015 UR
Determination is waived. Even if it was not waived, John Carr and District argue
that WCJ Makin properly excluded the 2015 UR Determination as not being
relevant. Claimant responds that he specifically argued, in his appeal to the Board,
that “the WCJ erred in failing to admit a prior Utilization Review of the same
treatment that was subject of this Utilization Review,” which had been offered
during his case in chief. (Claimant’s Reply Br. at 1.)
Section 703(a) of the Administrative Agency Law provides that a “party
may not raise upon appeal any . . . question not raised before the agency.” 2 Pa.
C.S. § 703(a). This provision is echoed in Rule 1551(a) of the Pennsylvania Rules
13
of Appellate Procedure, which states that, except in circumstances not applicable
here, “[n]o question shall be heard or considered by the court which was not raised
before the government unit . . . .” Pa.R.A.P. 1551(a). Thus, an issue not raised
before the Board is not preserved for appellate review. Marx v. Workers’ Comp.
Appeal Bd. (United Parcel Serv.), 990 A.2d 107, 110 (Pa. Cmwlth. 2010).
Moreover, in order to properly preserve an issue for an appeal, “a party must
specifically identify . . . the particular grounds being appealed to the Board.”
McGaffin v. Workers’ Comp. Appeal Bd. (Manatron, Inc.), 903 A.2d 94, 100-01
(Pa. Cmwlth. 2006) (emphasis added). The Board’s regulation at 34 Pa. Code
§ 111.11(a)(2) states that an appeal to the Board must include “[a] statement of the
particular grounds upon which the appeal is based . . . .”
Claimant’s appeal to the Board states, in pertinent part:
 The WCJ did not follow a prior determination when no change
in claimant’s condition was shown, i.e. the WCJ decision rejected
the principles of res judicata and collateral estoppel . . . where
defendant[s] had requested a review of treatment that had
previously been found reasonable and necessary by two WCJs and
a further utilization review . . . ;
 [T]he WCJ erred in failing to admit a prior utilization review of
the same treatment that was the subject of this utilization review
and that treatment was found to be reasonable and necessary by
that prior review . . . [;]
 [T]he WCJ erred in concluding that the offer of a prior
utilization review was in regard to motion to reopen the record,
when the utilization review was offered as a part of claimant’s case
in chief;
 [T]he WCJ erred in failing to admit a prior utilization review . .
..
14
(Claimant’s Appeal at 1-2, Certified Record Item 10.) As District and John Carr
point out, Claimant does not specifically identify, as a particular ground for the
Board’s review, that WCJ Makin erred in excluding the 2015 UR Determination as
not being relevant. Claimant’s appeal does not refer to that determination as being
relevant or that it had been excluded as not being relevant. Therefore, the Board
did not address that issue in its Opinion. Accordingly, we agree that Claimant has
not properly preserved his challenge to WCJ Makin’s decision excluding the 2015
UR Determination on relevancy grounds.11
B. Res Judicata/Collateral Estoppel
Claimant next argues the current UR Determination is barred under res
judicata and collateral estoppel. Claimant asserts the Decisions of WCJs Burman
and Callahan12 prohibit future challenges to the reasonableness and necessity of Dr.
Koenigsberg’s treatment, particularly the prescription of narcotic pain medication
to treat Claimant’s work injury. According to Claimant, in the 2014 Decision
denying the suspension petitions filed by District and John Carr, WCJ Callahan
11
We agree with Claimant’s argument that WCJ Makin erred in excluding the 2015 UR
Determination due to it being offered after the record was closed because Claimant offered that
UR Determination for admission at the July 25, 2016 hearing, where it was excluded as not being
relevant. Even if Claimant had preserved his relevancy challenge and the 2015 UR
Determination had been considered, contrary to Claimant’s arguments, the treatment reviewed in
the 2015 UR Determination does not appear to be the same as that reviewed in the current UR
Determination. The 2015 UR Determination addressed only one day of treatment, December 29,
2014, rather than the ongoing treatment at issue in the current UR Determination. Also, in the
time since the 2015 UR Determination and during the review period for the current UR
Determination, it appears that Dr. Koenigsberg added Oxycodone 15 mg 3 times a day as needed
to Claimant’s daily regimen, thereby increasing the amount of that medicine Claimant could
take.
12
Because of our decision regarding the exclusion of the 2015 UR Determination, we
will not address Claimant’s arguments based on that determination.
15
found credible Dr. Koenigsberg’s testimony that “[C]laimant continues to have
chronic pain; [C]laimant will have pain for the rest of his life and that pain will
need to be controlled by narcotic analgesics . . . .” (Claimant’s Br. at 16 (quoting
WCJ Callahan Decision, Finding of Fact ¶ 12) (emphasis added).) Claimant
contends the nature of his condition, and the need to use narcotic analgesics, was a
contested issue in the suspension petitions and, therefore, WCJ Callahan’s finding
on this point was determinative and binding on future WCJs. As neither District
nor John Carr proved that Claimant experienced a change in condition, Claimant
argues C.D.G. applies and bars the current UR Determination.
District and John Carr respond that the decisions of WCJs Burman and
Callahan do not act as res judicata and collateral estoppel to preclude future
challenges to the reasonableness and necessity of Dr. Koenigsberg’s treatment of
Claimant’s work injury. They assert that collateral estoppel does not apply
because these decisions dealt with different issues: WCJ Callahan’s 2014 Decision
addressed the suspension petitions based on refusal of medical treatment, not the
reasonableness and necessity of Dr. Koenigsberg’s treatment, and WCJ Burman’s
2011 Decision addressed the reasonableness and necessity of Dr. Koenigsberg’s
treatment for an entirely different time period and dosages of the medications.
Moreover, they maintain WCJ Makin found that there had been a change in
Claimant’s condition since the prior WCJs’ decisions, as evidenced by Dr.
Koenigsberg’s change in Claimant’s prescription medications. Finally, they argue
it is not always necessary to show a change in condition in order to request a UR,
as, under Gary, a lapse of time is sufficient, particularly when dealing with the
potential harm that can result from the long term use of opioids. See Troutman v.
Workers’ Comp. Appeal Bd. (Norristown Ford) (Pa. Cmwlth., No. 724 C.D. 2014,
16
filed April 10, 2015), slip op. at 17-18 (explaining, in rejecting an unreasonable
contest claim in a UR petition proceeding, that where a treatment may produce
negative effects, “it [is] not unreasonable for [the employer] to have questioned the
ongoing utility of the treatments, as [the employer] would ultimately be liable for
any potential negative consequences that could occur”).13 Here, in addition to the
change in Claimant’s condition, there was a lapse of time between the current UR
Determination and the decisions of WCJs Burman and Callahan, which District
and John Carr argue is sufficient to prevent the application of res judicata and
collateral estoppel.
We begin by observing that when a UR petition is filed, the burden of
proving that the medical treatment is not reasonable or necessary is on the
employer, regardless of which party files the petition. Topps Chewing Gum v.
Workers’ Comp. Appeal Bd. (Wickizer), 710 A.2d 1256, 1260-61 (Pa. Cmwlth.
1998). Here, acting as the fact finder and sole arbiter of credibility and evidentiary
weight, Greenwich Collieries v. Workmen’s Compensation Appeal Board (Buck),
664 A.2d 703, 706 (Pa. Cmwlth. 1995), WCJ Makin credited Dr. Cicuto’s opinions
that Dr. Koenigsberg’s ongoing prescription of opioid medications and Valium
were not reasonable and necessary. She further credited Dr. Pharo’s opinions to
the extent that they were consistent with the current UR determination, which
were, relevantly, that the dosages prescribed to Claimant were more than three
times the highest dosage approved by the American Medical Association and that
using urine screens to ensure proper usage was reasonable and necessary, but was
13
Troutman is cited as persuasive authority pursuant to Section 414(a) of the
Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).
17
not done. Such credited evidence constitutes substantial evidence14 that supports
WCJ Makin’s finding that Dr. Koenigsberg’s ongoing prescriptions of opioids and
Valium are not reasonable and necessary and the denial of the UR Petition. Thus,
unless the current UR Determination is barred by collateral estoppel or res judicata,
that decision will be upheld.
In C.D.G., we described the application of collateral estoppel to a UR
proceeding,15 as follows:
Collateral estoppel or issue preclusion is designed to prevent
relitigation of issues which have once been decided and have
remained substantially static, factually and legally. It forecloses
relitigation in a later action of an issue of fact or law which was
actually litigated and which was necessary to the original judgment.
For collateral estoppel to apply, it must be shown that (1) the issue
decided in the prior case is identical to the one presented in the later
case; (2) there was a final judgment on the merits; (3) the party
against whom the doctrine is asserted was a party or in privity with a
party in the prior case and had a full and fair opportunity to litigate the
issue and; (4) the determination in the prior proceeding was essential
to the final judgment.
C.D.G., 702 A.2d at 875 (internal quotation marks, citations, and footnote
omitted). Analogizing a UR proceeding to other situations in the WC area where
subsequent petitions can be filed, we explained
there has to be more than the passage of time for collateral estoppel
not to apply. A party seeking to alter benefits must prove that there
has been a change in physical condition since the last legal proceeding
14
“Substantial evidence is such relevant evidence a reasonable mind might accept as
adequate to support a conclusion.” WAWA v. Workers’ Comp. Appeal Bd. (Seltzer), 951 A.2d
405, 407 n.4 (Pa. Cmwlth. 2008).
15
Although the parties here refer to applying res judicata and collateral estoppel, we note
that while the Court in C.D.G. discussed the law of both principles, it ultimately analyzed the
matter under collateral estoppel. We will do the same here.
18
addressing the nature and extent of the injury . . . . The reasoning
behind such a standard being that otherwise a disgruntled employer
(or claimant) could repeatedly attack what [they] consider[] an
erroneous decision of a [WCJ] by filing [additional] petitions for
modification based on the same evidence ad infinitum in the hope that
one [WCJ] would finally decide in [their] favor.
Id. at 876 (quotation marks, citations, and emphasis omitted) (fourth alteration in
the original). Accordingly, we held in C.D.G. that Section 306(f.1)(6)(i) of the
Act, 77 P.S. § 531(6)(i), “does not change the general rule that there has to be a
change in claimant’s physical condition from the last proceeding for collateral
estoppel not to apply.” Id. at 877. While it does allow for a subsequent proceeding
to “be brought for new and different treatment . . . if the condition worsens from
the last” UR, “[i]t does not vitiate the application of the doctrine of collateral
estoppel to allow a constant stream of utilization requests where the treatment and
claimant’s condition remain the same even though time has” passed. Id.
In Gary, we considered C.D.G. in a situation where there was five and a half
years between UR requests seeking review of a claimant’s chiropractic care. Gary,
18 A.3d at 1284, 1287. The first UR determination found the care reasonable and
necessary, and the second UR determination found it was not based on the fact that
“there ha[d] been no significant or ongoing improvement in [the c]laimant’s
symptoms.” Id. at 1284. The claimant filed a UR petition, which the WCJ denied
because the records showed that her condition had not improved despite the many
years of the challenged treatment. After the Board affirmed, the claimant appealed
to this Court, arguing that the second UR determination was barred by collateral
estoppel under C.D.G. We affirmed, agreeing with the employer that it had
established that the claimant’s condition was getting worse and, therefore, the
necessary change of condition to avoid the application of collateral estoppel was
19
present. Gary, 18 A.3d at 1287. We also noted that “[t]he substantial difference in
the length of time between UR requests satisfie[d]” our “concern that UR ‘does not
vitiate the application of the doctrine of collateral estoppel to allow a constant
stream of utilization requests where the treatment and claimant’s condition remain
the same even though time has pas[sed]’ while an employer hopes that a WCJ will
finally find in its favor.” Id. (quoting C.D.G., 702 A.2d at 876-77 (last alteration in
Gary)). Finally, we observed
a UR petition is different from a termination petition because, unlike a
termination petition that is predicated on a change in [the c]laimant’s
physical condition, a UR petition is predicated on the reasonableness
and necessity of certain medical treatment. As such, in a UR
proceeding, the passage of time may affect the reasonableness and
necessity of a particular medical treatment, even if the claimant’s
medical condition has not changed. For example, surgery may not
be a reasonable and necessary form of treatment for a claimant soon
after a claimant is injured, but may become reasonable and necessary
later if other less invasive forms of treatment have not been beneficial.
Similarly, it is possible that a treatment may be initially reasonable
but, if it does not prove to be beneficial over time, a different
treatment may become more appropriate.
Id. at 1287 n.7 (emphasis added).
Applying either C.D.G. or Gary to the present matter, the decisions of WCJs
Burman and Callahan do not bar the current UR Determination. District and John
Carr have established that Claimant’s condition has changed since those decisions
and that sufficient time has passed to satisfy this Court’s concern that allowing the
current UR Determination would not vitiate the rationale set forth in C.D.G. We
address each decision in turn.
First, WCJ Burman’s 2011 Decision addressed Claimant’s challenge to a UR
determination by Dr. Cicuto of Dr. Koenigsberg’s prescription of a variety of
narcotic medications for Claimant on and after June 14, 2010. (WCJ Burman
20
Decision, Finding of Fact ¶ 2, R.R. at 20.) Dr. Cicuto opined that Claimant’s
“continu[ed] use of opioid medications[,] which are highly addictive[] and can
have negative [e]ffects on other body systems, were no longer reasonable or
necessary.” (Id.) Dr. Cicuto qualified his opinion with the observation that these
medications “would no longer be reasonable or necessary after completion of
medically supervised detoxification.” (Id. (emphasis added).) Acknowledging
this caveat by Dr. Cicuto, WCJ Burman found that “stopping the narcotic[]
medications could have deleterious [e]ffects, unless done under proper medical
supervision or transference to alternative drugs.” (Id.) Finally, WCJ Burman
credited Dr. Koenigsberg’s reports in which Dr. Koenigsberg indicates that he
“believe[d] he was providing Claimant with a supervised detoxification
program.” (Id. ¶ 4 (emphasis added).) Citing these opinions, WCJ Burman held
that “[b]oth [Dr. Cicuto] and [Dr. Koenigsberg] agreed on the continuing need [for
narcotic medications] until weaning is completed” and that, while Dr.
Koenigsberg’s “weaning schedule seems a bit slow, [the WCJ] w[ould] not tamper
with the decisions concerning prescription medication made by a treating
physician.” (WCJ Burman Decision, Conclusion of Law ¶ 2 (emphasis added).)
WCJ Burman’s 2011 Decision addressed Dr. Koenigsberg’s ongoing
prescription of narcotic pain medication for Claimant on and after June 14, 2010,
which was more than five years before the treatment period addressed by Dr.
Cicuto in the current UR Determination, October 14, 2015, and onward. As in
Gary, “[t]he substantial difference in the length of time between UR requests
satisfies this Court’s concern that [the] UR ‘does not vitiate the application of the
doctrine of collateral estoppel . . . .’” 18 A.3d at 1287 (quoting C.D.G., 702 A.2d
at 876-77). Moreover, as WCJ Makin found and is supported by the record,
21
Claimant’s prescriptions have changed since WCJ Burman’s Decision, which we
agree is evidence of a change in Claimant’s condition that would support a new
UR determination under C.D.G. (WCJ Makin Decision, FOF ¶ 10.) Finally, WCJ
Burman’s Decision did not, as Claimant argues, wholly endorse Claimant’s
ongoing use of narcotic pain medicine. It did the opposite, finding that Claimant
had to complete medically supervised detoxification, and be weaned off of that
ongoing use, and, once that occurred, those medications would not be reasonable
and necessary. Given the passage of time and change in Claimant’s condition, the
issues in the current UR Determination and WCJ Burman’s Decision are not
identical and, therefore, WCJ Makin did not err in concluding that WCJ Burman’s
Decision did not bar the current UR Determination.
Second, WCJ Callahan’s 2014 Decision addressed District’s and John Carr’s
suspension petitions, filed in December 2012, in which they sought a suspension of
Claimant’s benefits due to his refusal of reasonable medical treatment in the nature
of a detoxification program. (WCJ Callahan Decision, Finding of Fact ¶ 1.) While
there was medical evidence presented, that evidence focused on what benefit the
detoxification program would or would not have on Claimant. (Compare id. ¶ 4
(John Carr’s expert opinion regarding the benefit of the detoxification program was
to improve Claimant’s function and quality of life), with ¶ 9 (Dr. Koenigsberg’s
opinion that there was no situation in which detoxification would benefit
Claimant).) In rendering his opinion, Dr. Koenigsberg explained he has reduced
Claimant’s narcotic medication but that “Claimant [would] have pain for the rest of
his life and the pain will need to be controlled by narcotic analgesics,” which WCJ
Callahan credited while also recognizing the concern regarding the ongoing use of
such medications. (Id. ¶¶ 9, 12.) WCJ Callahan denied the suspension petitions
22
because John Carr and District did not meet their burden of proof on the
suspension petition, where their medical expert did not opine that “the
detoxification program would result in decreasing [Claimant’s] disability or
restoring [his] earning power” or would “enhance Claimant’s prospects for gainful
and fulfilling employment.” (Id. ¶ 12; WCJ Callahan, Conclusion of Law ¶ 2.)
WCJ Callahan’s 2014 Decision resolved the question of whether Claimant
had “forfeit[ed] his right to benefits when he refuse[d] reasonable medical services
for his work-related injuries.” Dep’t of Labor and Indus., Bureau of Workers’
Comp. v. Workers’ Comp. Appeal Bd. (Exel Logistics), 890 A.2d 1045, 1049 (Pa.
2005). To do that, John Carr and District had to show that Claimant “refuse[d]
reasonable medical or surgical procedures that would improve his condition and
lessen his disability.” Lisanti Painting Co. v. Workers’ Comp. Appeal Bd.
(Starinchak), 973 A.2d 464, 469 (Pa. Cmwlth. 2009);16 see also Kneas v.
Workmen’s Comp. Appeal Bd. (Cross Country Clothes), 685 A.2d 248, 250 (Pa.
Cmwlth. 1996) (“[T]reatment is reasonable . . . [if] it is highly probable that the
medical treatment will cure the claimant’s health problem; and . . . enhance the
claimant’s prospects for gainful and fulfilling employment.”). While medical
evidence was presented and WCJ Callahan did credit the testimony of Dr.
Koenigsberg that Claimant relies upon now, the medical evidence was focused on
the benefits of the proposed detoxification program in which Claimant refused to
enroll and whether those benefits made the programs reasonable medical treatment
16
Suspensions for this reason are pursuant to Section 306(f.1)(8) of the Act, 77 P.S.
§ 531(1)(8) (“If the employe shall refuse reasonable services of health care providers, surgical,
medical and hospital services, treatment, medicines and supplies, he shall forfeit all rights to
compensation for any injury or increase in his incapacity shown to have resulted from such
refusal.”).
23
for the purpose of suspending Claimant’s benefits. The reasonableness and
necessity of Dr. Koenigsberg’s ongoing prescriptions of opioids was neither at
issue in the suspension petitions, nor would it have been essential to WCJ
Callahan’s final judgment denying the suspension petitions. Accordingly, WCJ
Makin did not err in concluding that WCJ Callahan’s Decision did not bar the
current UR Determination.
We recognize that the serial use of URs is not sanctioned by our precedent.
But, we are also cognizant of the concerns and dangers of the long term use of
opioids, as reflected in the current UR Determination of Dr. Cicuto and report of
Dr. Pharo. (WCJ Makin Decision, FOF ¶¶ 15-17.) Such medications, per Dr.
Cicuto, are intended as the “last resort treatment for chronic non cancer pain,” (Id.
¶ 15), but it appears that Claimant is using these medications almost exclusively to
treat his pain. Given the change in the way these medications are being used in the
medical community, as reflected in Dr. Pharo’s observation of the current
American Medical Association guidelines for those medications, and Dr. Cicuto’s
indication that there has “been a significant change in the use of opioids in chronic
pain management,” (R.R. at 6, 90), it is not unreasonable for an employer to
question the ongoing, long term prescription of opioids to claimants. As we stated
in Troutman, “it [is] not unreasonable for [the employer] to have questioned the
ongoing utility of the treatments, as [the employer] would ultimately be liable for
any potential negative consequences that could occur.” Slip op. at 17-18.
Contrary to Claimant’s assertions, the decisions of WCJs Burman and Callahan did
not authorize Dr. Koenigsberg to continue to prescribe these medications,
unchallenged, forever. Rather, it is clear from those decisions that it was intended
for Claimant to be weaned off of these medications, a process which WCJ Makin
24
explained as being “consistently . . . recommended but refused by Claimant.”
(FOF ¶ 21.) For all of these reasons, we discern no error in WCJ Makin’s denying
Claimant’s UR Petition.
C. Penalties and Unreasonable Contest
Claimant last argues that the conduct he challenges here, the filing of
repeated UR requests for treatment that has already been found to be reasonable
and necessary without showing a change in his condition, violates the Act under
C.D.G. Therefore, Claimant asserts, WCJ Makin should not have denied the
Penalty Petition, and District’s and John Carr’s challenge to the UR Petition was
unreasonable, subjecting them to unreasonable contest attorneys’ fees under
Section 440(a) of the Act, 77 P.S. § 996(a).17 District responds that WCJ Makin’s
Decision denying Claimant’s UR Petition and Penalty Petition should be affirmed
because it is without error, well-reasoned, and supported by substantial evidence.
Because WCJ Makin properly denied the UR Petition, District asserts, Claimant
did not meet his burden of proving a violation of the Act. John Carr similarly
argues that because WCJ Makin found there was a change in Claimant’s condition
and denied the UR Petition, WCJ Makin properly found the contest of the UR
Petition reasonable and correctly denied the Penalty Petition.
Section 435(d) of the Act allows for the imposition of a penalty against an
employer if the employer violates the provisions of the Act or its rules or
regulations. 77 P.S. § 991(d).18 In a penalty petition proceeding, the claimant
bears the burden of proving that a violation of the Act or its regulations has
occurred. Dixon v. Workers’ Comp. Appeal Bd. (Medrad, Inc.), 134 A.3d 518, 525
17
Added by Section 3 of the Act of February 8, 1972, P.L. 25, as amended.
18
Id.
25
(Pa. Cmwlth. 2016). The assessment and amount of penalties imposed, if any, is
within the WCJ’s discretion, and the violation of the Act or its regulations must
appear in the record in order for a penalty to be appropriate. Id. If the claimant
meets this initial burden, the burden shifts to the employer to show that it did not
violate the Act. Id. Additionally, Section 440(a) of the Act addresses attorney’s
fees and provides, in relevant part:
In any contested case . . . the [claimant] . . . in whose favor the matter
at issue has been finally determined . . . shall be awarded . . . a
reasonable sum for costs incurred for attorney’s fee . . . [p]rovided[
t]hat cost for attorney fees may be excluded when a reasonable basis
for the contest has been established by the employer . . . .
77 P.S. § 996(a).
Claimant’s arguments are premised on this Court agreeing with his
contentions that WCJ Makin erred in denying his UR Petition. However, having
found no such error, Claimant has not established that John Carr or District has
violated the Act by requesting an improper UR. Moreover, as John Carr’s and
District’s positions were affirmed, their contest was reasonable and attorney’s fees
are unavailable under Section 440 of the Act. Accordingly, there was no error or
abuse of discretion in denying the Penalty Petition and request for unreasonable
contest attorney’s fees.
III. Conclusion
For the foregoing reasons, we affirm.
_____________________________________
RENÉE COHN JUBELIRER, Judge
26
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Daniel Fanning, :
Petitioner :
:
v. : No. 992 C.D. 2018
:
Workers’ Compensation Appeal :
Board (Lower Merion School District :
and John Carr Electric and School :
District Insurance Consortium and :
Harleysville Insurance Company), :
Respondents :
ORDER
NOW, May 2, 2019, the Order of the Workers’ Compensation Appeal
Board, entered in the above-captioned matter, is AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge