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Securitas Security Services v. Workers' Compensation Appeal

IN THE COMMONWEALTH COURT OF PENNSYLVANIA


April 4, 2011

SECURITAS SECURITY SERVICES USA, INC., PETITIONER
v.
WORKERS' COMPENSATION APPEAL
BOARD (SCHUH),
RESPONDENT :

The opinion of the court was delivered by: Patricia A. McCULLOUGH, Judge

Argued: December 8, 2010

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOHNNY J. BUTLER, Judge

OPINION BY JUDGE McCULLOUGH

Securitas Security Services USA, Inc. (Employer) petitions for review of an order of the Workers' Compensation Appeal Board (Board) affirming the decision of a workers' compensation judge (WCJ) to grant the review petition filed by Angela Schuh (Claimant).*fn1 We reverse.

Claimant suffered a work related back injury on November 30, 2004, when she stepped on a stool, lost her balance and fell. Employer issued a notice of temporary compensation payable (NTCP) accepting liability for a "lower back strain." (Reproduced Record (R.R.) at 3a.) Claimant received wage loss benefits in the amount of $293.13 per week, based on an average weekly wage of $325.70. (R.R. at 5a.) The NTCP converted to a notice of compensation payable (NCP) by operation of law.*fn2

In October 2005, Claimant sought treatment from Matthew Berger, M.D. Dr. Berger diagnosed Claimant as suffering from a major depressive disorder, and his treatment plan included psychotherapy and certain medications. (R.R. at 20a-22a.)

On May 5, 2006, Employer filed a utilization review (UR) request seeking prospective review of all future treatment provided to Claimant by Dr. Berger. (R.R. at 16a-17a.) The UR determination rendered July 7, 2006, found that all of the health care reviewed was reasonable and necessary, (LIBC-604, R.R. at 18a-19a), and Employer did not appeal.

On July 30, 2007, Claimant filed a review petition seeking to amend the description of the work injury to include diagnoses of depression and anxiety. Employer filed a responsive answer, and the matter was assigned to the WCJ for hearings.*fn3

Claimant did not testify or present evidence in support of her petition*fn4 but merely averred that Employer was estopped from denying liability for the psychological injuries by virtue of the unappealed UR determination. The parties submitted briefs on that issue, and, by order dated June 4, 2008, the WCJ granted Claimant's petition. Relying on Krouse v. Workers' Compensation Appeal Board (Barrier Enterprises, Inc.), 837 A.2d 671 (Pa. Cmwlth. 2003), the WCJ concluded that Employer could not avoid the effect of an adverse UR determination that it did not appeal. The WCJ further stated that, by availing itself of the UR process, Employer effectively acknowledged that Claimant's psychological treatment was related to her work injury. Accordingly, the WCJ amended the description of Claimant's work injury to include "work-related mental/physical injuries in the nature of depression and anxiety." (WCJ's decision at 4.)

Employer appealed to the Board, which concluded that all of the elements of collateral estoppel were satisfied and affirmed that part of the WCJ's decision granting Claimant's review petition.*fn5 The Board also observed that generally, an employer must acknowledge a work injury before UR may be requested.*fn6 The Board noted that Employer here had not formally accepted or denied liability for Claimant's depression and anxiety, but the Board concluded that Employer effectively acknowledged liability for Claimant's psychological condition by paying for related medical expenses and taking advantage of the Act's UR scheme.

On appeal to this Court,*fn7 Employer first argues that the WCJ erred in relying on Krouse and applying the doctrine of collateral estoppel in this case. In Krouse, we held that a claimant who had not appealed a UR determination that her chiropractic care was not reasonable or necessary was barred from pursuing payment for the same medical treatment in a subsequently filed review petition where she was suing for the same relief in both proceedings, the cost of her chiropractic care. As we explained in Krouse, the judgment in a prior action operates as an estoppel in a second action only as to those issues that: (1) are identical; (2) were actually litigated; (3) were essential to the judgment; and (4) were material to the adjudication. Id.; Patel v. Workmen's Compensation Appeal Board (Sausquoit Fibers Co.), 488 A.2d 1177 (Pa. Cmwlth. 1985).

The critical issue presented by Claimant's review petition is whether Claimant's depression and anxiety are causally related to the 2004 work-related back injury. That issue was not identical, litigated, essential or even relevant to the UR determination. In fact, in relevant part, 34 Pa. Code §127.406 (emphasis added) expressly provides 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.

Accordingly, the WCJ erred in concluding that collateral estoppel is applicable here. See Bloom v. Workmen's Compensation Appeal Board (Keystone Pretzel Bakery), 677 A.2d 1314 (Pa. Cmwlth. 1996).*fn8

Employer also argues that neither the payment of medical expenses nor the filing of a UR request establishes a causal relationship between a medical condition and a claimant's work injury. We agree.

It is well-settled that an employer's voluntary payment of the employee's medical expenses is not an admission of liability. Findlay Township v. Workers' Compensation Appeal Board (Phillis), 996 A.2d 1111 (Pa. Cmwlth. 2010); Bailey v. Workers' Compensation Appeal Board (Abex Corp.), 717 A.2d 17 (Pa. Cmwlth. 1998). The claimant in Bailey argued that her employer should be barred from litigating whether the claimant's surgeries were related to the initial work injury because the employer had accepted liability for the work injury, had never contested the causal relationship of the surgeries to that injury and, in fact, had paid for the surgeries. We held that an employer's voluntary payment of a claimant's medical bills should not be considered an admission of liability, explaining that a contrary holding would force employers to abandon a long established practice that benefits injured employees.

More important, nothing in our case law or applicable cost containment regulations suggests that the mere filing of a UR request imposes liability on an employer for a specific injury. Further, although this is not a medical only case, we note that 34 Pa. Code §127.405*fn9 recognizes that there is a distinction between paying medical expenses and accepting a work injury by specifically allowing an employer to request utilization review in a medical only case even where there has not been an acknowledgment or determination of liability for a work-related injury, with the caveat that the insurer shall be liable to pay for treatment found to be reasonable or necessary by an uncontested UR determination.

Based on the foregoing, we conclude that the Board erred in affirming the WCJ's decision to grant Claimant's review petition based solely on the unappealed UR determination. Accordingly, we reverse.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Securitas Security Services : USA, Inc., : Petitioner : v. : Workers' Compensation Appeal : Board (Schuh), : Respondent :

: No. 349 C.D. 2010

ORDER

AND NOW, this 4th day of April, 2011, the order of the Workers' Compensation Appeal Board is reversed.

PATRICIA A. McCULLOUGH, Judge


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