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07/01/97 MADONNA TATANO AND DOYLE L. TARWATER v.

July 1, 1997

MADONNA TATANO AND DOYLE L. TARWATER, M.D., PETITIONERS
v.
WORKERS' COMPENSATION APPEAL BOARD (COPYWORLD OF PITTSBURGH), RESPONDENT



Appealed From No. A95-4612. State Agency Workers' Compensation Appeal Board.

Before: Honorable Doris A. Smith, Judge, Honorable Rochelle S. Friedman, Judge, Honorable Emil E. Narick, Senior Judge. Opinion BY Judge Friedman. Judge Smith concurs in the result only.

The opinion of the court was delivered by: Friedman

OPINION BY JUDGE FRIEDMAN

FILED: July 1, 1997

Madonna Tatano (Claimant) and Doyle L. Tarwater, M.D., (together, Petitioners) appeal from an order of the Workers' Compensation Appeal Board (WCAB) affirming the decision of a Workers' Compensation Judge (WCJ) to dismiss Dr. Tarwater's petition for review of a utilization review determination based on the Conclusion that Dr. Tarwater's medical treatment of Claimant was not reasonable or necessary as of August 31, 1993.

Claimant was injured on August 30, 1991 when she fell down a flight of steps during the course of her employment with Copyworld of Pittsburgh (Employer). Pursuant to a Notice of Compensation Payable issued on September 25, 1991, Claimant received weekly indemnity benefits for the back pain, dizziness and headaches which resulted from her work injury. The WCAB, by order dated March 1, 1994, commuted Claimant's indemnity benefits to a lump sum of $45,000.00.

Following treatment with another doctor for her work-related injuries, Claimant treated with Dr. Tarwater from September 2, 1992 through April 19, 1994. On November 30, 1993, Employer filed an Initial Request for Utilization Review, alleging that the continued care and treatment which Dr. Tarwater provided to Claimant was no longer reasonable or necessary as of August 31, 1993. *fn1 Kenneth W. Gentilezza, M.D., rendered the initial utilization review determination and found that therapy continued after October 27, 1993 was not reasonable or necessary. Dr. Tarwater filed a Utilization Review Reconsideration Request from that adverse determination; however, in the reconsideration determination rendered on August 1, 1994, Michael J. Yao, M.D., concluded that Dr. Tarwater's treatment of Claimant was no longer reasonable or necessary effective September 1, 1993. Dr. Tarwater then filed a petition for review from the reconsideration determination pursuant to section 306(f.1)(6)(iv) of Act 44, 77 P.S. § 531(6)(iv), and a de novo hearing was held before a WCJ. *fn2 See 34 Pa. Code § 127.556.

The WCJ was presented with the deposition testimony of Dr. Tarwater, Claimant and Dr. Yao. Dr. Tarwater testified that he initially evaluated Claimant on September 2, 1992, and, after obtaining a history of her work injury and prior treatment, conducted his own physical examination. Based on that examination, he diagnosed Claimant as suffering from chronic cervical and lumbar sprain and lumbar disc disease. Dr. Tarwater indicated that for Claimant's complaints of constant headaches, neck pain and lower back pain, he began a course of treatment, given approximately two to three times a week, that consisted of moist heat, ultrasound, TENS (transcutaneous electrical nerve stimulation) and massage. (R.R. at 6a-10a.) According to Dr. Tarwater, this treatment program was successful in that Claimant's complaints were greatly diminished as of her last visit on April 19, 1994, at which point she reported feeling "pretty good." (R.R. at 10a, 11a, 25a.) However, in a report written on February 16, 1994, at the time he last examined Claimant, Dr. Tarwater noted that Claimant "remained symptomatic and impaired from performing any physical labor involving lifting over ten pounds, carrying, bending, stooping or repetitive pushing or pulling with the arms and legs. Her prognosis was fair." (R.R. at 25a-26a.) Finally, Dr. Tarwater opined that the treatment he provided to Claimant between September 2, 1992 and April 19, 1994 was reasonable and necessary as a result of Claimant's August 30, 1991 work injury.

In her testimony, Claimant stated that she believed she had benefitted from Dr. Tarwater's treatment; she indicated that, while her headaches continued, the pain in her neck and shoulder lessened considerably, and her back pain went from severe to moderate. (R.R. at 85a, 88a, 89a.) However, Claimant testified that she did not work during the course of her treatment and, in fact, did not feel that she was capable of returning to work during that period. Claimant also conceded that, as of February 1994 when Dr. Tarwater last examined her, he imposed significant physical restrictions on her which were commensurate with her physical condition at the time. (R.R. at 90a-92a.) Indeed, Claimant acknowledged that she still had not returned to work, although she noted that she felt she would be prepared to go into some type of work soon. (R.R. at 88a-89a.)

Dr. Yao, a board-certified family practitioner, testified that he had based his utilization review of Dr. Tarwater's treatment of Claimant solely upon Dr. Tarwater's medical records concerning that care; Dr. Yao admitted that he never actually examined or spoke to Claimant herself. *fn3 (See R.R. at 66a-72a.) Dr. Yao's impression was that Claimant suffered from chronic pain syndrome involving the neck and low back, and he opined that there was no significant evidence of improvement in Claimant's condition during the period of treatment with Dr. Tarwater. (R.R. at 62a-64a.) Dr. Yao noted that Dr. Tarwater's course of treatment predominantly consisted of passive physical therapy modalities, (R.R. at 61a-62a), and explained that, for individuals with soft tissue injuries to the cervical and/or lumbar spine, like Claimant, such passive modalities are helpful for the first three to six months following injury. In fact, Dr. Yao cited the North American Spine Society guidelines, which generally suggest that such treatment be discontinued three months post-injury. (R.R. at 64a-65a.) In this regard, Dr. Yao noted that Dr. Tarwater did not even begin his treatment of Claimant until approximately one year following her work injury; thus, Dr. Yao felt that, by September 1, 1993, treatment consisting of passive physical therapy modalities for Claimant's condition was no longer reasonable or necessary.

Based on this evidence, the WCJ concluded that continued treatment provided to Claimant by Dr. Tarwater was no longer reasonable or necessary as of August 31, 1993, and he denied and dismissed Dr. Tarwater's petition for review of the reconsideration determination. In making this decision, the WCJ found:

13. Your Workers' Compensation Judge accepts as credible and accepts as fact the testimony of defendant-employer's expert, Dr. Michael Yao. In accepting the opinions of Dr. Michael Yao, the testimony of Dr. Tarwater is rejected and found not to be credible. This determination is based upon the following considerations:

a. Dr. Tarwater agreed that the claimant visited his office at least one hundred and eighty times between September 2, 1992 and April 19, 1994. Despite this fact, the doctor agreed that at the time of his last examination of the claimant in 1994 she was still symptomatic and incapable of working in any capacity which would require lifting over ten pounds.

b. Your Workers' Compensation Judge accepts the opinions of Dr. Yao that continued passive modalities such as were provided by Dr. Tarwater are only beneficial for the period of three to six months immediately following the injury. It is noted that Dr. Tarwater agreed that the claimant did suffer from a soft tissue type injury and thus, it is found as fact that the doctor's continued use of ...


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