Opinion
No. 2084 C.D. 2008.
Submitted: March 6, 2009.
Filed: July 2, 2009.
BEFORE: SMITH-RIBNER, Judge; JUBELIRER, Judge; KELLEY, Senior Judge.
OPINION NOT REPORTED
Before this Court is the Petition for Review of Philadelphia Gas Works (Employer) from the order of the Workers' Compensation Appeal Board (Board) affirming the order of the Workers' Compensation Judge (WCJ), which granted Joseph Viola's (Claimant's) Petition for Review of Utilization Determination. The Board ordered Employer to pay for all treatment and prescriptions provided to Claimant by his treating physician. Employer argues that the WCJ erred in finding the uncontroverted testimony of the Utilization Review (UR) physician not credible, and that the Board impermissibly made a causality determination when it determined that Claimant was suffering from insomnia and depression as a result of his accepted back injury. For the following reasons, we affirm.
On December 20, 2000, Claimant suffered a work-related injury to his back. Employer accepted this injury through a Notice of Compensation Payable (NCP). As a result of this injury, Claimant "underwent a lumbar laminectomy to the L4-5 level in February 2001." (Utilization Review Determination (UR Determination) at 2, July 14, 2006.) Thereafter, Claimant consulted with Sofia Lam, M.D., a physician specializing in anesthesiology, for pain management. Dr. Lam diagnosed Claimant with "post-laminectomy syndrome with residual lumbar radiculopathy with the main focus in the right L5/S1 nerve root distribution and mechanical low back symptomology with lumbar facet arthropathy." (UR Determination at 2.) Dr. Lam began treating Claimant on February 6, 2003. Dr. Lam provided treatments to Claimant, including epidural steroid injections to the lumbar area, right lumbar facet injections, "first and second stage neuroplasty with lysis of adhesions," and a "right L5-S1 transforaminal steroid injection." (UR Determination at 3.) Dr. Lam also prescribed medications to Claimant, including Ambien, Percocet, Soma, and Xanax.
On May 15, 2006, Employer filed a Utilization Review Request (UR Request) asking the Bureau of Workers' Compensation (Bureau) to review the reasonableness and necessity of the treatment provided to Claimant by Dr. Lam beginning April 3, 2006. The Bureau assigned the UR to Watson Review Services as the Utilization Review Organization (URO). Nathan Schwartz, M.D., performed the UR on behalf of the URO. In the UR Determination, Dr. Schwartz noted that, on April 3, 2006, Dr. Lam:
recorded lumbar facetal tenderness, limited extension and negative dural tension signs. On the same date she performed right lumbar facet injections. The documentation reflected she prescribed Ambien 12.5 mg 1 tab per day, Percocet 10 mg 6 tab per day, Soma 1 tab q 8 hrs. And Xanax 0.5 mg bid. There was no future treatment plan documented on the 4/3/06 visit.
(UR Determination at 3.) Dr. Schwartz determined that the office visit and the right lumbar facet injections on April 3, 2006 were reasonable and necessary. Dr. Schwartz also concluded that the prescriptions for Soma and Percocet were reasonable and necessary. However, Dr. Schwartz determined that the prescriptions for Xanax and Ambien were not reasonable or necessary. While Dr. Schwartz did not explicitly state why the prescriptions for Xanax and Ambien were not reasonable and necessary, he did cite medical authorities for the principle that "treatment of post-laminectomy syndrome with residual lumbar radiculopathy with the main focus in the right L5/S1 nerve root distribution and mechanical low back symptomatology with lumbar facet arthropathy can be successfully managed through a trial of short acting opioids and muscle relaxants." (UR Determination at 6.)
Claimant filed a Utilization Review Petition (UR Petition) on August 21, 2006, challenging the UR Determination's conclusion that the prescriptions for Xanax and Ambien were not reasonable and necessary. The matter was assigned to the WCJ. In support of his UR Petition, Claimant submitted a report by Dr. Lam, along with Dr. Lam's typewritten and handwritten treatment notes and an affidavit by the Claimant. In opposition to Claimant's UR Petition, Employer filed Dr. Schwartz's UR Determination.
The WCJ found Dr. Schwartz's UR Determination credible insofar as it found Dr. Lam's treatment to be reasonable and necessary, but found Dr. Schwartz's determination not credible insofar as it found the prescriptions for Ambien and Xanax not to be reasonable and necessary. The WCJ stated that he gave greater weight to Claimant's affidavit and to the report and notes of Dr. Lam. The WCJ determined that, "[t]he medical service including, but not limited to those provided and/or prescribed by Dr. Lam from April 3, 2006 ongoing, including all treatment of office visits, referrals, DME, and prescriptions are reasonable and necessary and provided for treatment of the December 20, 2000 injury." (WCJ Decision, Findings of Fact (FOF) ¶ 12.) The WCJ, therefore, granted Claimant's UR Petition and ordered Employer to "pay for medical services . . . provided and/or prescribed by Dr. Lam from April 3, 2006 ongoing." (WCJ Order.)
Employer appealed to the Board, arguing that the WCJ "erred in determining that the prescriptions for the Xanax and Ambien are reasonable and necessary because the work-relatedness of any anxiety, depression, or sleep disorder has not been established." (Board Op. at 5.) The Board replied to this argument that it was Employer's burden to show that the treatment provided to Claimant was not reasonable and necessary, and suggested that if Employer wished to challenge the causal connection between Claimant's treatment and his work injury, then Employer should file a review medical petition. (Board Op. at 5 n. 4.) The Board also pointed out that, per Bloom v. Workmen's Compensation Appeal Board (Keystone Pretzel Bakery), 677 A.2d 1314 (Pa.Cmwlth. 1996), issues of causation are not to be addressed through a UR Petition. Employer also argued that the WCJ's determination that the prescriptions for Xanax and Ambien were reasonable and necessary lacked substantial evidence in the record to support it. The Board rejected this argument as well, and affirmed the WCJ's Order. Employer now appeals to this Court.
This Court's "scope of review in a workers' compensation appeal is limited to determining whether an error of law was committed, 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).
On appeal to this Court, Employer argues that the Board erred in holding "that Claimant's accepted work injury included a sleep disorder and depression," (Employer's Br. at 13), and that the WCJ's credibility determinations were not supported by substantial evidence.
For clarity of discussion, we have reordered Employer's arguments.
At the core of Employer's legal argument is that the WCJ and Board, by holding that Dr. Lam's prescriptions for Ambien and Xanax were reasonable and necessary treatment, essentially determined that Claimant's accepted injuries included insomnia and an anxiety disorder because these are the conditions for which these drugs are commonly prescribed. In doing so, Employer argues that the WCJ and Board impermissibly modified the description of Claimant's injury through the proceeding of reviewing a UR. Employer argues that, in a UR, only the reasonableness and necessity of the treatment provided to a claimant is to be at issue but, "[i]n finding that there was sufficient evidence that Ambien and Xanax were reasonable and necessary in the treatment of Claimant's work injury, the Appeal Board first made the causality determination that there was sufficient evidence that a sleep disorder and depression were a part of Claimant's accepted work injury." (Employer's Br. at 14) This argument is well-crafted, but it is the Employer, not the Board, who is attempting to introduce a causality determination into the UR process in this case.
Essentially, Employer, based on Dr. Schwartz's UR Determination, is arguing that the prescriptions for Xanax and Ambien are not reasonable and necessary because they are not causally related to Claimant's back injury. The issue of whether medical treatment is causally related to the work-related injury is not an issue that may be addressed through a UR. The Bureau's regulations, at Section 127.406 of Title 34 of the Pennsylvania Code, provide that:
(a) UROs shall decide only the reasonableness or necessity of the treatment under review.
(b) UROs may not decide any of the following issues:
(1) The causal relationship between the treatment under review and the employe's work-related injury.
34 Pa. Code § 127.406. While it may seem incongruous that a UR may determine that treatment is reasonable and necessary even though that treatment might not be causally related to a work-related injury, the Bureau's regulations clearly state that causality may not be determined in a UR proceeding. Moreover, this Court has interpreted Section 127.406 and stated "[a]n action concerning causation cannot be raised before a URO; therefore, it must be raised in a petition that is intended to be heard directly by a WCJ." Bloom, 677 A.2d at 1318. The proper method for challenging whether medical treatment is causally related to a work-related injury is through a petition to review medical treatment, not through a UR. For example, in Bloom, this Court held that the employer in that case properly challenged the causal relationship between the treatment of the claimant's symptoms and the claimant's work-related injury through a petition to review medical treatment. Id. at 1317-18.
Employer argues, however, that if this Court does not reverse the Board's decision in this case, Employer will be estopped from challenging the Board's supposed causality determination through a petition to review medical treatment. We disagree. As discussed above, a UR determination does not, and legally can not, involve a determination regarding the causal relationship between the treatment considered and a claimant's work-related injury. Therefore, a UR Determination can not have preclusive effect on the issue of the causal relationship between treatment and the work-related injury. See Hulmes v. Workers' Compensation Appeal Board (Rite Aid Corp.), 811 A.2d 1126, 1129 (Pa.Cmwlth. 2002) (collateral estoppel cannot apply unless the "issues in the prior adjudication are identical to the ones presented in the later action"). Although Employer relies on Florence Mining Co. v. Workmen's Compensation Appeal Board (McGinnis), 691 A.2d 984 (Pa.Cmwlth. 1997), in support of its position, this case is distinguishable. In Florence, this Court merely held that "an unappealed [UR] determination . . . is final and binding as to whether the treatment rendered was reasonable or necessary." Id. at 988. As discussed above, whether treatment is reasonable and necessary is discrete from the issue of whether the treatment is causally connected to the work-related injury. We, therefore, hold that it was not an error of law for the Board to determine that the prescriptions for Xanax and Ambien could be reasonable and necessary.
Employer also argues that the WCJ's credibility determinations are not supported by substantial evidence. Generally, credibility determinations are the sole province of the WCJ. Casne v. Workers' Compensation Appeal Board (STAT Couriers, Inc.), 962 A.2d 14, 17 (Pa.Cmwlth. 2008). Employer argues, however, that such credibility determinations must be based on substantial evidence, citing Bethenergy Mines, Inc. v. Workmen's Compensation Appeal Board (Skirpan), 531 Pa. 287, 612 A.2d 434 (1992).Bethenergy Mines states that it is the WCJ's role to make credibility determinations, and that the Board's role is limited to determining whether a WCJ's findings of fact are supported by substantial evidence. Id. at 291-93, 612 A.2d at 436-37. Therefore, while a WCJ's findings of fact must be supported by substantial evidence, it is not exactly accurate to say that a WCJ's credibility determinations must be supported by substantial evidence. This is not to say that a WCJ has carte blanche to make credibility determinations without explanation. Section 422(a) of the Workers' Compensation Act (Act) requires "that WCJs explain the rationale for their decisions and the reasons for rejecting or discrediting competent evidence." Casne, 962 A.2d at 17. Here, Employer argues that Ambien and Xanax are intended to treat sleep disorders and anxiety. Therefore, the WCJ erred in crediting Dr. Lam's notes and report and Claimant's affidavit over Dr. Schwartz's determination regarding the prescriptions for Ambien and Xanax because Dr. Lam did not diagnose Claimant with a sleep disorder or anxiety and there was no evidence in the record that either drug would help Claimant's back pain. Therefore, the WCJ's "credibility determinations were not reasoned as they failed to address the core question before the court; whether there was evidence that Ambien and Xanax were reasonable and necessary for the treatment of Claimant's low back injury." (Employer's Br. at 13.) Essentially, this argument is a reiteration of the argument we have rejected above, that the prescriptions for Xanax and Ambien were not causally related to Claimant's back injury. We will address, however, whether the WCJ gave a reasoned explanation for his credibility determinations.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 834. Section 422(a) states:
Neither the board nor any of its members nor any workers' compensation judge shall be bound by the common law or statutory rules of evidence in conducting any hearing or investigation, but all findings of fact shall be based upon sufficient competent evidence to justify same. All parties to an adjudicatory proceeding are entitled to a reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole which clearly and concisely states and explains the rationale for the decisions so that all can determine why and how a particular result was reached. The workers' compensation judge shall specify the evidence upon which the workers' compensation judge relies and state the reasons for accepting it in conformity with this section. When faced with conflicting evidence, the workers' compensation judge must adequately explain the reasons for rejecting or discrediting competent evidence. Uncontroverted evidence may not be rejected for no reason or for an irrational reason; the workers' compensation judge must identify that evidence and explain adequately the reasons for its rejection. The adjudication shall provide the basis for meaningful appellate review.
77 P.S. § 834.
The WCJ did, in fact, give an explanation for his credibility determinations, stating:
The progress notes and reports of Dr. Lam, the Affadavit of the Claimant and the report of Dr. Schwartz have been reviewed and considered in their entirety.
The determination of Dr. Schwartz as to the reasonable [sic] and necessity of treatment provided and/or prescribed by Dr. Lam is found to be credible.
The determination of Dr. Schwartz [that] the prescribed medication of Ambien and Xanax are not reasonable or necessary is rejected as not credible.
The greater weight for persuasion as to the need for the prescribed medication is given the Affadavit of the Claimant and the progress notes and reports of Dr. Lam.
Dr. Lam is Claimant's pain management treating physician and is in a better position to determine the Claimant's need for prescribed medication based on the credible history of symptoms related by the Claimant, the numerous physical examinations performed by Dr. Lam, review of medical records and her training and experience as a physician.
The meticulous progress notes and narrative reports of Dr. Lam document the medical services provided and support the Claimant's Affadavit, as well as the reasonableness and necessity of treatment provided from April 3, 2006 ongoing.
(FOF ¶ 11.) As Claimant points out, this Court has stated that "greater credence may be given to the testimony of a treating physician than to a physician who examines simply to testify for litigation purposes."D.P. "Herk" Zimmerman, Jr., Inc. v. Workmen's Compensation Appeal Board, 519 A.2d 1077, 1080 (Pa.Cmwlth. 1987). Moreover, the record supports the reasons given by the WCJ. In his affidavit, Claimant stated that the medications prescribed to him by Dr. Lam, including the Xanax and Ambien, "take the edge off the pain and help keep it manageable." (Claimant's Affidavit at 2, July 11, 2006.) Dr. Lam's records reflect that Claimant was experiencing difficulty sleeping and depression. (See, e.g., Letter from Dr. Lam to Dr. Ronald Luber (March 15, 2004).) Dr. Lam's records also reflect a desire to use medications besides narcotic drugs in order to reduce the risk of dependency. (Letter from Dr. Lam to Dr. Luber (June 8, 2004) at 1.) And indeed, Dr. Lam's notes reflect that some of Claimant's symptoms, such as his difficulty sleeping, did improve. (Notes of Dr. Lam, January 13, 2005.) The WCJ is, therefore, correct that Dr. Lam is Claimant's treating physician, and that she did take copious notes of her examinations and treatment of Claimant. Thus, we must decline to reweigh the evidence and overturn the WCJ's credibility determinations.
For these reasons, we affirm the Order of the Board.
ORDER
NOW, July 2, 2009, the Order of the Workers' Compensation Appeal Board in the above-captioned matter is hereby AFFIRMED.