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Securitas Security Services v. Workers' Compensation Appeal

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 ...


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