J. Golembesky v. WCAB (Worth & Company, Inc.) ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jason Golembesky, :
:
Petitioner :
:
v. : No. 843 C.D. 2018
: Submitted: November 2, 2018
Workers’ Compensation Appeal :
Board (Worth & Company, Inc.), :
:
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: July 9, 2019
Jason Golembesky (Claimant) petitions for review of the May 23, 2018
order of the Workers’ Compensation Appeal Board (Board) that affirmed the
decision of a Workers’ Compensation Judge (WCJ) denying his Petition for Review
of Utilization Review (UR) Determination. The WCJ found that the treatment
rendered to Claimant by the provider under review, Paul Caracappa, D.O. (Provider),
from February 22, 2016, and prospectively was not reasonable or necessary.
Claimant maintains that the WCJ’s decision was not based on substantial evidence.
Discerning no error, we affirm.
Claimant injured his lower back on March 23, 2010, in the course and
scope of his employment with Worth & Company, Inc. (Employer). Employer
accepted liability for the injury through a notice of compensation payable. On March
19, 2012, the parties executed a compromise and release agreement resolving
Claimant’s indemnity claim and providing that Employer remained liable for all
reasonable and necessary medical expenses related to the work injury.
On March 3, 2014, Claimant sought treatment with Provider, his
primary care physician, for neck stiffness and soreness and back pain. Provider’s
diagnosis was displacement of thoracic or lumbar intervertebral disc without
myelopathy, lumbar radiculopathy, chronic pain due to trauma, and post-traumatic
stress disorder. Provider initially prescribed oxycodone 15 mg, 3 tablets, and 30 mg,
4 tablets, twice daily, and continued to prescribe opioids at varying doses for
purposes of Claimant’s pain management. According to the last treatment note
available on December 21, 2015, Provider prescribed oxycodone at doses of 15 mg,
4 tablets, and 30 mg, 4 tablets, twice daily. UR Determination, Reproduced Record
(R.R.) at 8a-10a.
On February 22, 2016, Employer filed a UR petition, requesting review
of the reasonableness and necessity of the treatment rendered by Provider for the
period from February 22, 2016, and prospective. Michael Ziev, D.O. completed the
UR Review and concluded that Provider’s treatment was no longer reasonable and
necessary as of February 22, 2016. UR Determination, R.R. at 6a-12a.
Dr. Ziev is board certified in family practice. He reviewed the medical
records of Provider as well as x-rays and notes of treatment rendered prior to
Claimant’s dates of service with Provider. Dr. Ziev also reviewed Claimant’s
diagnoses, established treatment protocols, and Center for Disease Control (CDC)
guidelines for managing chronic back pain with opioid therapy. Additionally, Dr.
Ziev had a telephone conference with Provider, during which Provider reported that
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he had not treated Claimant for several months and had discharged Claimant from
his care. Provider stated that he had no plans to treat Claimant from February 22,
2016, and prospectively. WCJ’s Findings of Fact (F.F.) No. 6g; R.R. at 10a.
Provider further indicated that he did not provide any referrals for Claimant. Dr.
Ziev also considered an employee statement from Claimant, in which Claimant
described his injury and treatment and benefits of taking oxycodone.
Dr. Ziev determined that the treatment of Provider under review,
specifically, monthly office visits, random urine screenings, and oxycodone 15 mg,
4 tablets, and 30 mg, 4 tablets, twice daily, were not reasonable and necessary as of
February 22, 2016. In doing so, Dr. Ziev noted that under CDC guidelines, non-
pharmacologic and non-opioid pharmacologic therapy is preferred for treatment of
patients with chronic pain. He also explained that because Provider reported that he
released Claimant from his care several months ago and had no plans to treat him
from February 22, 2016, and ongoing, the monthly office visits, prescriptions for
oxycodone, and random urine screenings are not reasonable and necessary
prospectively as of February 22, 2016, and ongoing. UR Determination, R.R. at 10a-
11a.
On May 12, 2016, Claimant filed a Petition for Review of the UR
Determination, and the matter was assigned to a WCJ. In support of the review
petition, Claimant testified before the WCJ, stating that he tried physical therapy at
three different facilities, had 12-14 injections, and had a trial stimulator implanted,
all of which were ineffective. R.R. at 29a-31a. Claimant testified that when he was
taking the prescribed opioids, the medication managed his pain enough to allow him
some increase in daily activity, such as taking walks. R.R. at 41a-42a, 46a.
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Claimant also testified that he was not presently taking opioids and was
participating in a six-month-long detoxification program, which included suboxone
medication and regular doctor visits. R.R. at 33a-35a. Claimant stated that the
suboxone was not helpful in terms of pain management and that he was essentially
bedridden. R.R. at 34a-35a. At the time of his October 25, 2016 testimony, Claimant
had not taken opioid narcotic pain medication for approximately four to five months
and had not seen Provider since approximately February 22, 2016.
Claimant understood that the detoxification treatment plan would run
for six months and then he would return to Provider and “start from the beginning”
at a lower dosage of oxycodone. R.R. at 35a, 41a. He believed that the
detoxification program was recommended because it was unclear whether the
oxycodone was helping his back pain. R.R. at 40a-41a. In response to questions
from the WCJ, Claimant explained that he intended to resume taking oxycodone
“because it’s the only way that I’m going to be able to have somewhat of a normal
life . . . have some happiness . . . [and] do some things I used to do . . . .” R.R. at
47a.
Claimant also submitted a report from Provider, dated August 15, 2016.
R.R. at 52a. In the report, Provider stated that Claimant has three different herniated
discs in his thoracic spine and a protruding disc in his lower lumbar spine. Provider
noted that Claimant has had multiple spinal epidural injections as well as a spinal
cord stimulation and, unfortunately, he needed opioid narcotic pain medication for
effective pain management. Provider added that Claimant’s only other option was
to undergo a risky spinal operation.
Employer presented the Independent Medical Examination (IME)
report of Gregory H. Pharo, D.O., dated March 3, 2015. R.R. at 53a-59a. Dr. Pharo
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took a history from Claimant, conducted a physical examination, and reviewed
Claimant’s medical records from 2010 through the date of his exam. R.R. at 53a-
57a. In his report, Dr. Pharo stated that Claimant’s initial diagnosis was an acute
lumbar strain or sprain. R.R. at 53a; 56a. Dr. Pharo stated that Claimant was
previously not responsive to various conservative treatment methods, including
epidural steroid injections, intraarticular facet joint injections, and a spinal cord
stimulator trial. R.R. at 53a. However, Dr. Pharo opined that the opioid medications
that Claimant was taking at the time were excessive, even though the doses were
lower than in the past. R.R. at 57a. Additionally, Dr. Pharo noted that while
Claimant was taking “massive dosages, essentially three times what is considered a
high dose of morphine equivalent,” Claimant reported only a 5-10% improvement
of his pain and symptoms. R.R. at 58a. Dr. Pharo also believed that, due to
Claimant’s high intake of opioids, Claimant has some degree of opioid-induced
hyperalgesia, which may have contributed to Claimant’s ongoing symptoms as well
as his general lack of motivation, fatigue, and depression. Id. Dr. Pharo added that
there are no long-term studies that support the chronic use of opioids for pain
management, and he noted that the American College of Occupational and
Environmental Medicine states that opioid medications have only limited benefit.
Id. Dr. Pharo recommended that Claimant undergo an inpatient detoxification
program and begin an exercise program. Id.
The WCJ found the medical opinions of Dr. Pharo and Dr. Ziev credible
and rejected Provider’s report as not credible. F.F. No. 10. The WCJ determined
that Provider’s report and Claimant’s testimony did not support ongoing long-term
opioid treatment for Claimant’s symptoms. The WCJ found that Provider’s report
lacked critical pieces of information, such as the results of any clinical examination,
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the risks of long-term narcotics use, and the presence or absence of any side effects
from the opioids or the results of the urine screen tests. The WCJ emphasized
Provider’s failure to address Claimant’s current detoxification treatment, stating it
was a “glaring weakness.” Id. The WCJ found Claimant’s testimony credible that
the opioid treatment provided some relief from his ongoing pain but found that
insufficient to establish that the treatment was reasonable and necessary on a
continual basis. F.F. No. 11.1 Accordingly, the WCJ concluded that, after February
22, 2016, Provider’s treatment was not reasonable or necessary. R.R. at 65a.
Claimant appealed the WCJ’s decision to the Board, arguing that the
WCJ’s finding that Provider’s continued treatments were not reasonable and
necessary was not supported by substantial and competent evidence. More
specifically, Claimant asserted that: 1) the WCJ based his findings on an inaccurate
impression that Provider had discharged Claimant without the intent to continue
treatment after Claimant’s detox; 2) the WCJ erred in crediting the opinions of Dr.
Ziev and Dr. Pharo over Provider’s opinions; and 3) Claimant’s testimony supports
a finding that Provider’s treatment of prescription opioids provided Claimant
1
The WCJ stated:
This Judge finds the Claimant to be candid and truthful in his belief
that these medications provide palliative relief, but this is a complex
medical issue and his testimony is not sufficient to persuade this
Judge that the ongoing prescriptions for narcotics is reasonable and
necessary. This Judge applauds his efforts to engage in a program
to reduce the use of narcotics.
F.F. No. 11.
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reasonable and necessary palliative care in treating his work-related injury pain. The
Board affirmed, and Claimant now petitions this Court for review.2
Initially, we note that the employer bears the burden, throughout the
UR process, to prove that the challenged medical treatment is unreasonable or
unnecessary. Topps Chewing Gum v. Workers’ Compensation Appeal Board
(Wickizer), 710 A.2d 1256, 1261 (Pa. Cmwlth. 1998). The WCJ’s hearing on a UR
petition is a de novo proceeding in which the UR Determination must be part of the
record and considered as evidence; however, the UR Determination findings are not
binding on the WCJ. Section 306(f.1)(6)(iv) of the Workers’ Compensation Act,
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §531(6)(iv). Further,
determinations concerning the weight and credibility of the UR report, as with any
other evidence, are for the WCJ, as fact-finder. Sweigart v. Workers’ Compensation
Appeal Board (Burnham Corporation), 920 A.2d 962, 966 (Pa. Cmwlth. 2007).
Claimant argues that the WCJ’s decision is unsupported by the
evidence. Claimant asserts that the UR Determination was flawed, in part because
the UR reviewer based his conclusion on the mistaken impression that Provider had
discharged Claimant without the intent to resume treatment after Claimant
completed the detoxification program.
However, in his analysis, the WCJ sets forth multiple reasons why he
found the continued treatment with Provider to be not reasonable and necessary,
including that the serious risks outweigh the minor benefits that Claimant received
2
Our scope of review in a workers’ compensation appeal is limited to determining whether
an error of law was committed, whether constitutional rights were violated, or whether necessary
findings of fact are supported by substantial evidence. Bloom v. Workmen’s Compensation Appeal
Board (Keystone Pretzel Bakery), 677 A.2d 1314, 1317 n.4 (Pa. Cmwlth. 1996). Substantial
evidence means such relevant evidence as a reasonable mind might accept as adequate to support
the conclusions reached. Bethenergy Mines Inc. v. Workmen’s Compensation Appeal Board
(Skirpan), 612 A.2d 434, 436 (Pa. 1992).
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from long-term opioid use. The WCJ noted Dr. Ziev’s reference to CDC guidelines
concerning the treatment of chronic pain. Additionally, the WCJ cited Dr. Pharo’s
expert opinions that no studies support the long-term use of the medications at issue,
which provided Claimant only minimal pain relief. F.F. Nos. 9-10. These opinions
are substantial evidence supporting the WCJ’s finding that the treatment under
review is not reasonable or necessary.
Claimant also argues that the WCJ erred by crediting the opinions of
Dr. Ziev and Dr. Pharo over Provider’s opinion. However, determinations of
credibility and the weight to be accorded to evidence are the exclusive prerogative
of the WCJ. Vols v. Workmen’s Compensation Appeal Board (Alperin, Inc.), 637
A.2d 711, 714 (Pa. Cmwlth. 1994). The WCJ is free to accept or reject the testimony
of any witness, including medical witnesses, in whole or in part, and such findings
are not to be disturbed on appeal. Greenwich Collieries v. Workmen’s Compensation
Appeal Board (Buck), 664 A.2d 703, 706 (Pa. Cmwlth. 1995).
Claimant further asserts that his testimony supports a finding that
Provider’s treatment of prescription opioids provided palliative care in treating the
pain caused by his work-related injury. Citing Glick v. Workers’ Compensation
Appeal Board (Concord Beverage Company), 750 A.2d 919 (Pa. Cmwlth. 2004),
and Cruz v. Workers’ Compensation Appeal Board (Philadelphia Club), 728 A.2d
413 (Pa. Cmwlth. 1999), Claimant argues that because the treatment at issue
constitutes palliative care, the WCJ should have found it reasonable and necessary.
In Cruz, the WCJ found, inter alia, that the treatment under review was
not reasonable or necessary because there had been no improvement in the
claimant’s condition from a functional standpoint and the treatment was intended
only to control the claimant’s pain. The Board affirmed. On appeal, we reversed,
8
observing that treatment may be reasonable and necessary, “even if it is designed to
manage the claimant’s symptoms rather than to cure or permanently improve the
underlying condition.” 728 A.2d at 417 (citations omitted).
In Glick, the WCJ determined that the treatment under review,
including ultrasound, heat packs, a high voltage stimulator and a TENS unit, was not
reasonable and necessary because it gave the claimant only symptomatic relief and
provided no lasting benefits related to the claimant’s work injury. The Board
affirmed. Citing Cruz, we reversed and held that evidence demonstrating that
treatment merely relieved the claimant’s pain was insufficient to establish that the
treatment was not reasonable and necessary.
However, in contrast to the facts in Cruz and Glick, Dr. Ziev and Dr.
Pharo did not opine that Provider’s treatment was not reasonable and necessary
solely because it was merely palliative and did not have a lasting benefit for
Claimant’s work injury. Instead, both Dr. Ziev and Dr. Pharo stated that long-term
opioid treatment should only be continued if there is clinically meaningful
improvement in pain and function in accordance with current medical guidelines and
standards. Both doctors also determined that the opioid therapy did not provide
Claimant with any meaningful improvement in pain management or functionality.
In fact, Dr. Pharo opined that the opioid treatment potentially contributed to
Claimant’s symptoms. Thus, the decisions in Cruz and Glick do not compel a
different outcome here. Further, although the WCJ found Claimant to be credible
that the opioid treatment provided some palliative relief, the WCJ found Claimant’s
testimony insufficient to rebut Employer’s evidence that the serious risks of long-
term opioid use outweigh its minor benefits. This determination of evidentiary
weight is not subject to review on appeal. Greenwich Collieries, 664 A.2d at 706.
9
The facts in this case are analogous to those in Bedford Somerset
MHMR v. Workers’ Compensation Appeal Board (Turner), 51 A.3d 267 (Pa.
Cmwlth. 2012). In Turner, the WCJ found that the claimant’s use of fentanyl, in
lozenge form, was not reasonable and necessary because of its addictive nature and
because it was not approved for use in connection with the claimant’s condition. The
Board reversed based on the claimant’s testimony that she was not able to find a
viable alternative treatment. On appeal, the employer argued that the Board erred
by disturbing the WCJ’s credibility determination, and this Court agreed.
We observed in Turner that, “a UR Reviewer may consider whether it
is reasonable and necessary for a provider to expose a patient to the level of risk
presented by a medication.” Id. at 272-73. Thus, we held that the WCJ’s decision
to credit the testimony of the medical witness, which confirmed the UR reviewer’s
conclusion that the use of fentanyl lozenges was not reasonable and necessary
because of the drug’s highly addictive nature, was binding upon appeal. Id. at 273.
Similarly, here, the WCJ credited the testimony of Dr. Ziev and Dr. Pharo that the
risks of long-term opioid treatment outweighed the minimal benefit that Claimant
was receiving, and that credibility determination is not subject to challenge on
appeal. Turner; Greenwich Collieries.
Upon review, we conclude that the testimony credited by the WCJ,
specifically, the opinions of Dr. Ziev and Dr. Pharo, constitutes substantial and
competent evidence to support the WCJ’s determination that Provider’s treatment
from February 22, 2016, and ongoing was not reasonable and necessary.
Accordingly, the Board properly affirmed the WCJ’s decision.
For all the foregoing reasons, we affirm.
10
MICHAEL H. WOJCIK, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jason Golembesky, :
:
Petitioner :
:
v. : No. 843 C.D. 2018
:
Workers’ Compensation Appeal :
Board (Worth & Company, Inc.), :
:
Respondent :
ORDER
AND NOW, this 9th day of July, 2019, the order of the Workers’
Compensation Appeal Board, dated May 23, 2018, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge