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Susan Gary v. Workers' Compensation Appeal

April 21, 2011

SUSAN GARY, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (PHILADELPHIA SCHOOL DISTRICT), : RESPONDENT :



The opinion of the court was delivered by: Renee Cohn Jubelirer, Judge

Submitted: November 5, 2010

BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JOHNNY J. BUTLER, Judge

OPINION BY JUDGE COHN JUBELIRER

Susan Gary (Claimant) petitions for review of the order of the Workers' Compensation Appeal Board (Board) affirming the order of the Workers' Compensation Judge (WCJ), which denied Claimant's Utilization Review (UR) Petition. The Board determined that continued treatment by Claimant's chiropractor was no longer reasonable or necessary as of December 31, 2007. On appeal, Claimant argues that the Board erred in affirming the WCJ's denial because: (1) the WCJ made no reference to a previous 2003 UR decision which found the same treatment of Claimant by the same chiropractor to be reasonable and necessary; (2) Philadelphia School District (Employer) failed to uphold its burden of showing either a change in Claimant's condition or a change in the treatment since the 2003 UR decision; (3) the UR Determination by the UR physician was inaccurate; and (4) Claimant submitted unequivocal medical evidence to support her continued need for chiropractic therapy.

On March 7, 2001, Claimant suffered a work-related injury to her neck and back while employed with the Employer. Employer accepted this injury through a Notice of Compensation Payable recognizing a cervical and lumbar strain injury. WCJ Devlin issued an order on November 19, 2003, granting a UR (2003 UR Decision) and ordering Employer to pay for Claimant's chiropractic treatment with Robert Ackert, D.C., on and after June 11, 2002. Subsequently, WCJ Olin issued a decision on May 23, 2007, dismissing Employer's termination petition and expanding Claimant's accepted work injuries to also include cervical and lumbar radiculopathy. On January 28, 2008, Employer filed a UR Request asking the Bureau of Workers' Compensation (Bureau) to review the reasonableness and necessity of the chiropractic treatment provided to Claimant by Dr. Ackert beginning December 31, 2007. The Bureau assigned the UR to Laurel Reviews as the Utilization Review Organization (URO). Gregg J. Fisher, D.C., performed the UR on behalf of the URO.

In the UR Determination, Dr. Fisher noted that he reviewed Dr. Ackert's records, Claimant's signed statement, and numerous diagnostic studies and records from Claimant's treating physician, Sofia Lam, M.D. Dr. Fisher noted that Claimant saw Dr. Ackert on December 2, 2005, who, at that time, diagnosed Claimant with cervical radiculitis/neuritis, cervical sprain/strain, lumbar sprain/strain, cervical/thoracic/lumbar segmental dysfunction, and cervical/thoracic/lumbar myofascial pain syndrome. Dr. Fisher noted that Claimant went to Dr. Ackert's office 190 times from December 2, 2005 to

December 28, 2007, and Dr. Ackert performed a total of 25 examinations. Dr. Ackert told Dr. Fisher that Claimant's condition is chronic. Dr. Fisher found the current treatment by Dr. Ackert constituted an ongoing therapeutic phase of treatment but, because there has been no significant or ongoing improvement in Claimant's symptoms, he found the ongoing treatment unreasonable and unnecessary.

Claimant filed a UR Petition on March 31, 2008, challenging the UR Determination's conclusion that all treatment by Dr. Ackert since December 31, 2007 was unreasonable and unnecessary. The matter was assigned to the WCJ. In support of her UR Petition, Claimant testified and submitted the following documents: (1) a report from Dr. Ackert stating that he believes his treatment of Claimant is reasonable and necessary; (2) a report from Dr. Lam stating she believes that, in addition to her treatment of Claimant, Claimant also needs chiropractic care one to two times per week from Dr. Ackert; and (3) a personal statement by Claimant noting that Dr. Ackert's treatment alleviates some of her pain.

The WCJ found the medical records submitted by Claimant neither credible nor persuasive because Claimant's condition has not shown improvement in any way despite several years of chiropractic treatment. The WCJ did not find Claimant's testimony persuasive or convincing because Claimant did not submit substantial, unequivocal medical evidence to support the continued need of chiropractic therapy. However, the WCJ found the UR Determination convincing and persuasive because, after reviewing records pertaining to Claimant's overall treatment, it noted that Claimant has shown no significant improvement over time and Dr. Ackert's findings have not changed significantly over time. The WCJ found the treatment by Dr. Ackert unreasonable and unnecessary because it is not helping Claimant to improve. As such, the WCJ denied and dismissed the UR Petition. Claimant appealed the WCJ's order to the Board, which affirmed. Claimant now appeals to this Court.*fn1

On appeal, Claimant argues that the WCJ erred in denying the UR Petition and that the decision is not supported by substantial evidence. In making this argument, Claimant points to several alleged errors. Because Claimant's first two arguments are related, we discuss them together. Claimant asserts that the WCJ failed to address the 2003 UR Decision that ordered Employer to pay for Claimant's chiropractic treatment with Dr Ackert on and after June 11, 2002. Claimant contends that the 2003 UR Decision "establishes the starting point for [Employer]'s burden of proof," (Claimant's Br. at 10), and failure to reference the 2003 UR Decision was legal error. Claimant contends that "Employer's defense that the treatment was not improving Claimant was rejected as not credible by [the 2003 UR Decision] and the Employer cannot re-litigate what it already lost previously." (Claimant's Br. at 10-11.) Relying on C.D.G., Inc. v. Workers' Compensation Appeal Board (McAllister), 702 A.2d 873 (Pa. Cmwlth. 1997), Claimant asks us to vacate and remand this case to the WCJ to consider the 2003 UR Decision in order to decide if Employer upheld its burden of proving either a change in condition or a change in treatment since the 2003 UR Decision.

Employer argues that "there is evidence of record that proves [Claimant]'s condition has changed over the years since the first UR in 2002. In fact, the evidence seems to suggest [Claimant] is getting worse." (Employer's Br. at 6.)

Employer asserts that Claimant has been receiving chiropractic treatment for eight years and her condition is declining. "When treatment does not help and actually appears to be hurting, it should not be allowed." (Employer's Br. at 7.)

In C.D.G., the employer challenged a decision of the Board that denied its UR petition and directed the employer to pay certain medical bills associated with the physical therapy that the claimant was receiving from her doctor for the claimant's work-related injury. The employer initially had filed a petition to review medical treatment, alleging that the claimant had reached the maximum benefits from those treatments and that any therapy provided after November 3, 1992 was unreasonable and unnecessary. This petition to review medical treatment was assigned to a WCJ (first WCJ). While that petition was pending before the first WCJ, our General Assembly enacted an amendment to the Pennsylvania Workers' Compensation Act (Act),*fn2 known commonly as "Act 44."*fn3 This amendment created the UR process at issue in this case. The employer then filed a UR request asserting, similarly, that the claimant's medical treatment by her doctor was not reasonable or necessary for the period after August 31, 1993. The reviewer determined that the treatment was not necessary and the claimant sought review of the UR determination, which was assigned to another WCJ (second WCJ). Before the second WCJ acted on the same, the first WCJ conducted hearings relating to the employer's petition to review medical treatment and rendered a decision concluding that the treatments were unreasonable and unnecessary as of November 2, 1992. The employer then argued before the second WCJ that the decision of the first WCJ constituted a final adjudication on the merits of the reasonableness of the treatments by the claimant's doctor and, hence, the claimant's UR petition was precluded on collateral estoppel grounds.*fn4 The second WCJ, however, rejected that argument and reviewed the parties' experts' reports, ultimately concluding that the treatment by the claimant's doctor was reasonable and necessary. The employer appealed to the Board, which concluded that collateral estoppel did not apply. The Board affirmed the decision and order of the second WCJ.

On appeal to this Court, we reversed the Board. This Court considered whether the difference in the dates and frequency of treatment were sufficient distinctions to represent different issues and preclude the application of collateral estoppel. Ultimately, we concluded that the Board erred in permitting the claimant to re-litigate whether the same treatment was necessary without showing a change in condition. We found that the UR provisions under the Act did not "change the general rule that there has to be a change in claimant's physical condition from the last proceeding for collateral estoppel not to apply." Id. at 877 (emphasis added). Moreover, we indicated that said provisions did not "vitiate the application of the ...


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