The opinion of the court was delivered by: Judge LEAVITT*fn1
Submitted: August 28, 2009
BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
Lynda Hall (Claimant) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) that dismissed her utilization review petition and granted her employer's termination petition. In doing so, the Board affirmed the decision of the Workers' Compensation Judge (WCJ) that he lacked jurisdiction over the utilization review petition and that the evidence proved that Claimant had fully recovered from her work injury. Discerning no error, we affirm.
On August 12, 2004, Claimant, a nurse, fell at work, hitting her buttocks, back and shoulder. She continued working until November of 2004 when she left to take a new job. She left that new job in January 2005 because of pain. Claimant then filed a claim petition, a reinstatement petition (Claimant had suffered a serious work injury in 1993) and a review petition against America Service Group (Employer), which was her employer in August 2004. Her petitions were resolved by stipulation and Employer began paying Claimant disability at the rate of $690 per week as of February 15, 2005.
Included in the parties' stipulation was a notice of compensation payable (NCP). In the NCP's "Injury Information" space, the "body part affected" was described as "low back." Claimant's Brief at 69.*fn2 The "type of injury" was identified as "strains to back, aggravation of lumbar disc disease." Id. The "description of injury" was completed as follows:
lumbar/thoracic/cervical strain & sprain & aggravation of underlying disc disease & prior disc injury at L5-S1, & aggravation of radicular component at L5.
In February 2006, Claimant filed a review petition to assure that treatment provided to her by Guy Fried, M.D. of Magee Rehabilitation Hospital would be covered as reasonable and necessary treatment of her August 2004 work injury. The Utilization Review Organization (URO) assigned the request to Emmanuel E. Jacob, M.D., who issued a report that Dr. Fried did not provide his medical records for review. On the basis of this report, the URO determined Dr. Fried's treatment to be neither reasonable nor necessary.*fn3
Claimant then filed the instant utilization review petition, seeking to have the WCJ order a substantive review of Dr. Fried's treatment. Employer filed a termination petition, alleging that Claimant fully recovered from her work injuries as of May 11, 2006. Claimant's utilization review petition and Employer's termination petition were heard in one proceeding before the WCJ.
With respect to Claimant's petition, Employer offered several documents. The documents showed that on February 22, 2006, the URO sent Dr. Fried a letter by certified mail, instructing him to forward a copy of his medical records within 30 days. On April 13, 2006, the URO sent a letter to Dr. Fried acknowledging receipt of the records sent on April 10, 2006, which did not meet the 30-day deadline.
In response, Claimant presented the deposition testimony of Karen McKinney, regional manager of IOD, Inc., a company in the business of processing medical records on behalf of hospitals. McKinney testified that a computer printout showed that Michelle Sampson, the employee assigned to Magee Rehabilitation Hospital, received the URO request on March 1, 2006. On March 2nd, McKinney herself signed the record certification form that accompanies medical records sent out by IOD on behalf of a provider.*fn4 McKinney assumed that Sampson mailed the records that same day because the computer system listed March 2nd as the "complete date." McKinney admitted that she had no personal knowledge that the records were actually sent on that date. She noted that an entry in the computer system recorded that Dr. Fried's records were "resent" on April 10, 2006, which she could not explain.
In opposition to Employer's termination petition, Claimant testified before the WCJ. Claimant acknowledged that she sustained a work-related back injury in 1993 while working for a different employer. Claimant collected workers' compensation for that injury until she went to work for Employer in October 2001. While working for Employer, Claimant treated regularly with Steven J. Valentino, D.O., for her 1993 back injury.
Claimant explained that the day after her fall in August 2004, she sought treatment from Episcopal Hospital's emergency room. She then treated with Employer's panel physician for several months while, at the same time, she continued to see Dr. Valentino for treatment. The August 2004 incident did not interfere with Claimant's ability to work for Employer, and she continued to do so until November 2004 when she left to take a position with another company. Claimant left her new job on January 5, 2005, because of pain. Employer has paid her total disability benefits in accordance with the stipulation since February 15, 2005.
Claimant testified that since the August 2004 fall, her back pain has increased. She experiences pain in her legs as well as neck pain, which causes headaches and numbness in the ring and small fingers of her right hand. In response to her attorney's question about her thoracic spine, Claimant replied that this area is "very tender." Notes of Testimony, November 13, 2006, at 25. Claimant testified that she cannot return to her pre-injury job or any other work because of her back, leg and neck pain.
Claimant presented the deposition testimony of Dr. Valentino, a board certified orthopedic surgeon who began treating Claimant in March 1996 for her 1993 work injury, which caused a herniated disc at L5-S1. This work injury was preceded by lumbar degenerative disc disease. Prior to seeing Dr. Valentino, Claimant underwent surgery for her herniated disc, but it was not successful and the herniation recurred. In 2001, Dr. Valentino authorized Claimant to take the light-duty job with Employer. In March 2004, Claimant reported a worsening of back pain, prompting Dr. Valentino to remove her from work for two weeks. At the next visit in July 2004, Claimant complained of back pain, which was radiating into both legs. Dr. Valentino diagnosed Claimant with post laminectomy syndrome, lumbar disc herniation at L5-S1, facet syndrome and sacroiliac joint dysfunction.
After her July 2004 visit, Dr. Valentino next saw Claimant on October 6, 2004, at which time she complained of increased back pain, pain in both sacroiliac joints as well as pain and numbness in both legs. Dr. Valentino observed restricted range of motion and back spasms. Claimant did not mention her fall at work two months before this visit. Dr. Valentino saw Claimant in December 2004 and again in January 2005; at neither visit did she mention the August 2004 fall. On February 1, 2005, Claimant reported her August 2004 fall at work to Dr. Valentino. Also at this visit, she reported, for the first time, new symptoms consisting of pain in the neck and upper back as well as upper extremity numbness. At that point, Dr. Valentino diagnosed Claimant with a cervicothoracic lumbar strain or sprain; aggravation of lumbar degenerative disc disease; and aggravation of the pre-existing L5-S1 disc herniation with sciatica. He attributed these conditions to the 2004 fall at work.*fn5 Dr. Valentino last examined Claimant on September 6, 2006, when he diagnosed her with cervicolumbar disc herniations; cervical radiculopathy; and aggravation of pre-existing cervicolumbar degenerative disc disease.*fn6 This diagnosis, unlike the one of February 1, 2005, did not include a sprain or strain at any point of her spine. Dr. Valentino does not believe Claimant can work at any job.
In support of its termination petition, Employer presented the deposition testimony of David N. Bosacco, M.D., a board certified orthopedic surgeon who performed an independent medical examination (IME) of Claimant on May 11, 2006. Because Claimant complained to Dr. Bosacco of pain in her neck, low back and right hand, he focused his physical examination on those areas. With regard to the cervical and lumbar areas, Dr. Bosacco reported that Claimant's neurological examination was normal, and her range of motion was normal. He found no spasms, tenderness or radiculopathy. Dr. Bosacco reviewed radiographic diagnostic tests, and they revealed that Claimant had degenerative disc disease in the lumbar and cervical spine and a recurrent herniated lumbar disc at L5-S1, all of which pre-existed the 2004 work incident.
Based on his physical examination and review of her medical records, Dr. Bosacco opined that Claimant was fully recovered from her work-related injury, which he described as a cervical and lumbar sprain and strain with an exacerbation of symptoms of her pre-existing lumbar disc disease and lumbar disc herniation at L5-S1. Dr. Bosacco explained that the aggravation, or "exacerbation," of lumbar disc disease was resolved by the date of the IME. Dr. Bosacco added that Claimant had also recovered from any lumbar radiculopathy. In his view, Claimant's fall at work in August 2004 did not require any work restrictions.
The WCJ accepted the testimony of Dr. Bosacco as credible and rejected the testimony of Dr. Valentino. The WCJ was troubled by Dr. Valentino's attempts to sidestep the fact that Claimant's pre-injury condition was prone to worsening, which, in fact, had happened in March 2004 and July 2004, well before her August 2004 fall. The WCJ specifically rejected Dr. Valentino's opinion that Claimant sustained a new pathology as a result of the August 2004 injury. The WCJ found that Claimant fully recovered from the work injury by the time of the IME on May 11, 2006, and granted Employer's termination petition.*fn7
The WCJ also conducted a factual inquiry into the timeliness of Dr. Fried's response to the URO request for medical records. Gazzola v. Workers' Compensation Appeal Board (Ikon Office Solutions), 911 A.2d 662 (Pa. Cmwlth. 2006). The WCJ considered McKinney's testimony but found that she was "the wrong person to testify" because she did not know whether Dr. Fried's records had been sent to the URO on March 2, 2006. WCJ Decision, May 12, 2008, at 4; Finding of Fact 20. In the absence of competent ...