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J.D. Landscaping v. Workers' Compensation Appeal Board (Heffernan

December 2, 2011

J.D. LANDSCAPING, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (HEFFERNAN), RESPONDENT



The opinion of the court was delivered by: P. Kevin Brobson, Judge

Argued: October 18, 2011

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES R. KELLEY, Senior Judge

OPINION BY JUDGE BROBSON

J.D. Landscaping (Employer) petitions for review of an order of the Workers' Compensation Appeal Board (Board), dated August 13, 2010. The Board affirmed the decision of a Workers' Compensation Judge (WCJ), which granted the fatal claim petition of Casey Lynn Heffernan (Claimant) requesting benefits as a result of the death of her father, James Heffernan (Decedent). For the reasons that follow, we affirm the Board.

Decedent injured his lower back while working for Employer on July 12, 2002. On July 26, 2002, Employer issued a temporary notice of compensation payable (TNCP) recognizing Decedent's injury as a "lower back strain." (WCJ's Decision at 3.) The TNCP was converted to a notice of compensation payable (NCP) on October 22, 2002, and the description of injury in the NCP was later expanded to include a herniated disc at L4-5. (Id.)

On March 5, 2006, Employer filed a utilization review (UR) request, challenging the reasonableness and necessity of all treatment provided to Decedent by George L. Rodriguez, M.D., on or after February 15, 2007. (Reproduced Record (R.R.) at 124a.) By UR determination issued June 4, 2007, Richard S. Kaplan, M.D., concluded that all treatment provided by Dr. George Rodriguez, including prescriptions for Sonata, Fentanyl, Oxycodone, Fentora, Docusate, and Lyrica, was neither reasonable nor necessary "from February 15, 2007 and into the future." (Id. at 128a-29a.) Dr. George Rodriguez petitioned for review of the UR determination, however, that petition was later withdrawn. (WCJ's Decision at 3.)

On November 17, 2007, Claimant filed a fatal claim petition against Employer, alleging that Decedent died of multiple drug intoxication on June 18, 2007. (Id.) Employer filed an answer on December 5, 2007, denying the material allegations in Claimant's fatal claim petition, and the matter was assigned to the WCJ. (Id.) On October 28, 2008, the parties executed a joint stipulation of facts, which provides, in pertinent part:

2. It is agreed and stipulated that on 07/12/2002, [Decedent] suffered injuries to his low back, including a herniated disc at L4-5, while within the course and scope of his employment. . . . .

4. It is agreed and stipulated that [Decedent] died on June 18, 2007 as a result of multiple drug intoxication. . . .

5. It is agreed and stipulated that [Decedent] had one dependent at the time of his death, [Claimant].

6. It is agreed and stipulated that [Decedent] died from prescription drugs prescribed for him as result of his work injury, however, Employer was not responsible for the payment of those drugs from February 15, 2007 and ongoing into the future based upon the June 4, 2007 Utilization Review Determination of Dr. Richard S. Kaplan. . . .

7. It is agreed and stipulated that [Decedent] died as result of an accidental overdose, primarily [F]entanyl, in excess of the amount prescribed for him for his work injury. . . . (R.R. at 108a-09a (footnote omitted).)

Attached to the joint stipulation of facts was the Delaware County Medical Examiner's post-mortem report, toxicology report, and investigator's report. (R.R. at 111a-20a.) The WCJ summarized the Delaware County Medical Examiner's reports as follows:

a. An investigative report from the County of Delaware Office of Medical Examiner dated June 19, 2007 indicates on June 18, 2007, a family member came to Decedent's resident [sic] to check on his well being and found him unresponsive in bed. EMS was called. EMS noted that he was asystole and cold, with a box of Fentanyl patches in his hand and pink froth coming from his mouth. His past medical history was recorded as back problems for which he was taking Fentanyl, Oxycodone and several other pain medications. His last medical doctor was recorded as Daisy Rodriguez. An investigator from the Medical Examiner's Office was called and thereafter, reported to the scene. Decedent's body and the surrounding scene were examined. Decedent was in bed, holding Fentanyl instructions in his right hand. The television, light and fan were on in the bedroom. Several prescription medications were found on a cart in the bedroom. They included Fentanyl, Carisoprodol, Lyrica, Nexium, Sonata, Oxycodone, Lexapro, Actoplus, Cyclobenzaprine and Docusate. All appeared to be in order, but the Fentanyl-filled June 16, 2007 for 12 patches with four remaining and Hydrocodone-filled May 27, 2007 for 120 found empty. Decedent's body, the Fentanyl patches and the empty Hydrocodone bottle filled [sic] were taken to the Medical Examiner's Office.

b. On Judge [sic] 19, 2007, a complete autopsy was performed by the County of Delaware Office of the Medical Examiner and a Post-mortem Report was completed indicating that the cause of death was multiple drug intoxication. By history, the Decedent had a past medical history of back problems and he was taking multiple medications for the back pain. His death was determined to be accidental.

c. A toxicology report issued on July 6, 2007, indicated that six sealed containers were received on June 22, 2007. This report noted findings consistent [sic] consumption of less than one alcoholic drink; Propoxyphene, which is synthetic narcotic analgesic, frequently compounded with non-narcotic analgesics; Oxycodone, a narcotic analgesic, often compounded with other ingredients such as ...


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