The opinion of the court was delivered by: Robert Simpson, Judge
Submitted: October 7, 2011
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
In this workers‟ compensation appeal, the Commonwealth of Pennsylvania, Department of Transportation and CompServices, Inc. (collectively, Employer) ask whether the workers‟ compensation authorities erred in denying their petition for review of a utilization review (UR) determination. Additionally, Employer challenges the grant of Larry Clippinger‟s (Claimant) petition to review medical treatment and/or billing and his penalty petition. Employer argues the workers‟ compensation authorities erred in: (1) determining Employer was responsible for the unliquidated costs of purchasing and installing a new home therapy pool and an addition to Claimant‟s home to house the pool; (2) granting Claimant‟s penalty petition; and, (3) awarding unreasonable contest attorney fees and litigation costs. Upon review, we vacate in part, affirm in part, and remand.
In 1992, Claimant sustained a low back injury while working for Employer. The nature of the injury was described as "spinal stenosis, herniated disc at L4-5." Workers‟ Compensation Judge‟s (WCJ) Op., 6/2/10, Finding of Fact (F.F.) No. 1. Employer recognized Claimant‟s injury through a suspension agreement. *fn1 WCJ‟s Ex. 1 at 1.
In May 2008, Claimant filed a penalty petition alleging Employer refused to pay medical bills related to the treatment of his work injury, including bills for physical therapy and prescriptions. He sought a 50% penalty on all late and unpaid bills from September 2004, and ongoing, as well as attorney fees. Claimant also filed a petition to review medical treatment and/or billing, alleging Employer refused to pay medical bills for the treatment of his work injury and seeking payment for the installation of an aquatic therapy pool at his home.
In September 2008, Claimant filed a UR request, seeking review of the reasonableness and necessity of a HydroWorx home fitness pool and the construction of an additional room to house it. In the UR Determination, Dr. William Spellman, M.D., found the HydroWorx home fitness pool and the construction of an additional room to house it was reasonable and necessary, "if alternative means were not available." F.F. No. 42 (emphasis added).
Employer subsequently filed a petition for review of the UR determination, seeking review of the reasonableness and necessity of a home fitness pool and construction of an additional room to house it. Hearings ensued before a WCJ on Claimant‟s petition to review medical treatment and/or billing and his penalty petition as well as Employer‟s petition for review of the UR determination.
Before the WCJ, Claimant provided the following testimony. In 1992, Claimant injured his lower back at work. Shortly thereafter, he underwent surgery and returned to work. In June 2000, Claimant suffered a recurrence of his lower back injury and, several months later, he underwent a second surgery. Postoperatively, Claimant suffered paralysis from the waist down. As a result, Claimant underwent a third surgery. In late-2000, Claimant returned to part-time sedentary work before returning to full-time sedentary work several months later.
Claimant suffered permanent impairment from the waist down, which includes partial paralysis, weakness, loss of sensation, difficulty with balance and partial bowel and bladder dysfunction. Claimant strains to stand up, his muscles do not respond, and he does not have any feeling in his legs. Claimant is able to walk with a cane, but he must use ankle braces if he is walking on uneven ground. Claimant‟s lack of feeling in his feet make it difficult for him to transition from smooth to rough surfaces when walking. Claimant has trouble with the start-up motion of getting out of a chair because of a lack of feeling in his legs, and he needs to grab onto a handrail until he can get his cane. Claimant can mostly dress himself, but his wife assists him in putting on his socks and shoes.
Because Claimant‟s neurological deficit interferes with his ability to perform land-based exercise, Dr. Ronald Lippe, M.D. (Claimant‟s Physician), prescribed aquatic therapy, which relieves muscle soreness and helps build stamina. Claimant receives aquatic therapy at a physical therapy facility, but he explained the facility is busy with other patients. Claimant has difficulty getting from his vehicle to the building, particularly if it is wet and slippery, he has difficulty changing in the locker room, and he has difficulty walking in the locker room because the floor is slippery. There is no one to help him in the locker room, but if he is at home, his wife can help him. Claimant explained his Physician prescribed a HydroWorx home therapy pool for Claimant‟s aquatic therapy, which is a small pool with a treadmill that can be raised and lowered, allowing Claimant to get in and out of the water without twisting his back. Claimant also testified he submitted prescriptions for Methylprednisolone, Flomax, Meloxicam, Buspiron, and Clonazepam to Employer for reimbursement, but he did not receive reimbursement for these prescriptions.
Claimant also presented deposition testimony from his Physician, a board certified orthopedic surgeon, who began treating Claimant in January 1992. Claimant‟s Physician testified as follows. Claimant underwent back surgery in March 1992. Claimant suffered a recurrence of his work-related low back injury in 2000, resumed treatment and again underwent back surgery. During the postoperative period, Claimant sustained a herniation in his back that resulted in cauda equina syndrome, that is, Claimant had such a large herniation that it caused occlusion of his spinal canal, resulting in the loss of function in his legs, bowel and bladder. Claimant underwent a third surgery, but he was left with permanent, significant residual defects. Claimant‟s Physician explained he prescribed aquatic therapy because Claimant‟s neurological deficit interferes with his ability to exercise, and it is important for him to exercise for his heart, his lungs, and for his muscles that do function.
Claimant‟s Physician recommended Claimant obtain a therapeutic pool with a treadmill, which would allow his body to be in the water as he exercises and uses his legs. Claimant‟s Physician opined the pool would help manage Claimant‟s pain. He further opined aquatic therapy is reasonable and necessary and causally related to Claimant‟s work injury, and he should perform aquatic therapy five days a week, one hour at a time, for the rest of his life. Claimant‟s Physician opined it would be more beneficial and safer for Claimant to perform aquatic therapy at home because it would be risky for him to walk around a gym on slippery floors. There is also a possibility that if Claimant used a public facility, someone could bump into him or he might have to move quickly, resulting in a fall and possibly a very severe injury. Claimant‟s Physician also opined that prescriptions for Methylprednisone, Flomax, Meloxicam, Buspar and Clonazepam were reasonable and necessary for Claimant‟s work injury.
In opposition, Employer presented deposition testimony by Dr. William Spellman, M.D. (Employer‟s Physician), who is also board certified in orthopedic surgery. Employer‟s Physician examined Claimant in October 2008. He opined Claimant suffered a back injury and developed cauda equine syndrome, a neurological problem related to his back injury. Employer‟s Physician opined Claimant has significant residuals related to his cauda equine syndrome, and he continues to have problems with fluid management in his lower extremities, secondary to the neurological injury to his low back. Employer‟s Physician conducted the utilization review in this matter. Employer‟s Physician opined the prescribed aquatic therapy was reasonable and necessary and was causally related to the work injury. However, Employer‟s Physician opined, as long as there are other, reasonable ways of performing aquatic therapy, it would not be appropriate for Claimant to have a therapy pool installed in his home.
Ultimately, the WCJ credited Claimant‟s testimony. Additionally, the WCJ credited Claimant‟s Physician‟s testimony based on the length of time he treated Claimant. The WCJ accepted Employer‟s Physician‟s testimony to the extent it corroborated the credible testimony of Claimant‟s Physician. Specifically, he accepted Employer‟s Physician‟s testimony that Claimant‟s prescriptions were causally related to his work injury. The WCJ also accepted Employer‟s Physician‟s testimony that aquatic therapy is reasonable and necessary for Claimant‟s work injury. However, the WCJ determined Employer‟s Physician‟s objections to Claimant‟s "home-based" aquatic therapy were "neither legally competent nor factually relevant." F.F. No. 54.
Based on these determinations, the WCJ granted Claimant‟s review and penalty petitions and denied Employer‟s petition for review of the UR determination. The WCJ further found Claimant‟s prescriptions were causally related to his work injury. Additionally, the WCJ determined the installation of a physical therapy pool in Claimant‟s home, along with the necessary renovations to install the pool, was reasonable and necessary. The WCJ also determined Employer did not present competent medical evidence to justify its failure to pay for Claimant‟s prescriptions or for the installation of a physical therapy pool in Claimant‟s home. As a result, the WCJ awarded a 50% penalty. The WCJ also concluded Employer engaged in an unreasonable contest and awarded $8,820 in attorney fees. Finally, the WCJ awarded $2,274.85 in litigation costs.
On Employer‟s appeal, the Workers‟ Compensation Appeal Board (Board) affirmed. In upholding the WCJ‟s determination that installation of the in-home therapy pool was reasonable and necessary, the Board analogized this case to our Supreme Court‟s decision in Griffiths v. Workers‟ Compensation Appeal Board (Seven Stars Farm, Inc.), 596 Pa. 317, 943 A.2d 242 (2008) (quadriplegic claimant may be entitled to a wheelchair accessible van because the van may constitute an "orthopedic appliance" under Section 306(f.1)(1)(ii) of the Workers‟ Compensation Act (Act),*fn2 77 P.S. § 531(1)(ii), depending on the specific facts of the case). The Board also affirmed the WCJ‟s grant of Claimant‟s penalty petition as well as the award of attorney fees and litigation costs. Employer now petitions for review to this Court.
On appeal,*fn3 Employer contends the workers‟ compensation authorities erred in: (1) determining it was responsible for the costs of purchasing and installing a home therapy pool and an addition on Claimant‟s house; (2) granting Claimant‟s penalty petition; and, (3) awarding Claimant unreasonable contest attorney fees and litigation costs.
I. Reasonableness and Necessity of an In-Home Therapy Pool and an Addition on Claimant's Home
Employer first argues a review of Griffiths, relied on by the Board, regarding "orthopedic appliances," results in a determination that an item is only considered an orthopedic appliance where it allows a claimant access to mobility and medical treatment, which, absent the appliance, the claimant could not obtain. Employer contends that situation is not present here. Rather, in this case, Claimant works full-time, albeit in a restricted capacity, and is able to access a physical therapy center where he receives aquatic therapy from a licensed therapist. Nevertheless, Employer argues, Claimant cites problems such as changing, the time it takes to receive treatment, and undocumented safety issues, to justify his desire for an in-home therapy pool and an addition on his home to house the pool. As a result, Employer maintains, the Board erred in determining the home therapy pool and an addition on Claimant‟s home are orthopedic appliances. Despite profound sympathy for Claimant‟s situation, we are constrained to agree in part.
Section 306(f.1)(1)(i) of the Act, 77 P.S. §531(1)(i), provides, in pertinent part, "the employer shall provide payment in accordance with this section for reasonable surgical and medical services, services rendered by physicians or other health care providers, including an additional opinion when invasive surgery may be necessary, medicines and supplies, as and when needed." Section 306(f.1)(1)(ii) of the Act, 77 P.S. §531(1)(ii), indicates, "[i]n addition to the above services, the employer shall provide payment for medicines and supplies, hospital treatment, services and supplies and orthopedic appliances, and prostheses in accordance with this section." ...