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Cucchi v. Workers' Compensation Appeal Board (Robert Cucchi Painting, Inc.)

Commonwealth Court of Pennsylvania

July 17, 2014

Joseph Cucchi, Petitioner
v.
Workers' Compensation Appeal Board (Robert Cucchi Painting, Inc.), Respondent

Submitted May 30, 2014

Appealed from No. A12-0805. State Agency: Workers' Compensation Appeal Board.

Mark R. Schmidt, Media, for petitioner.

Lisa A. Miller, Exton, for respondent Robert Cucchi Painting, Inc.

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge. OPINION BY SENIOR JUDGE FRIEDMAN.

OPINION

ROCHELLE S. FRIEDMAN, Senior Judge

Page 441

Joseph Cucchi (Claimant) petitions for review of the January 8, 2014, order of the Workers' Compensation Appeal Board (WCAB) affirming the decision of a workers' compensation judge (WCJ) to deny Claimant's petition for review of a utilization review determination (UR Petition). We vacate the WCAB's order and remand for further proceedings.

Claimant was injured on July 12, 2005, while working for Robert Cucchi Painting, Inc. (Employer). A notice of compensation payable listed Claimant's injuries as lumbar, thoracic, and rib fractures, lung pneumothorax, and liver lacerations. The parties resolved Claimant's entitlement to indemnity benefits by way of a compromise and release agreement.

On April 11, 2011, Employer requested a utilization review (UR) of the medical treatment provided by Claimant's physical therapist, Richard Battaglini, from March 23, 2011, onward. On June 22, 2011, the UR reviewer, physical therapist Jay D. Kauffman, determined that Battaglini's treatment from March 23, 2011, onward was unreasonable and unnecessary.[1] On July 6, 2011, Claimant filed his UR Petition with the WCJ.

In his UR report, Kauffman noted that Claimant's treating physician referred Claimant to Battaglini for physical therapy in January 2011. Battaglini initially evaluated Claimant on February 17, 2011. Thereafter, on February 22, 2011, February 24, 2011, March 1, 2011, and March 8, 2011, Claimant received treatments in the form of moist heat, electrical stimulation, therapeutic exercises, and soft-tissue mobilization. Claimant received four additional treatments between March 23, 2011, and April 13, 2011. (WCJ's Findings of Fact, No. 5.)

Page 442

Kauffman spoke with Battaglini on June 13, 2011, about Claimant's treatment. Kauffman also reviewed Claimant's employee statement, in which he indicated that physical therapy helped alleviate his pain. Claimant also stated his belief that, without physical therapy, he would have no pain relief. Kauffman noted, however, that the medical records did not show that Claimant had made any objective or functional progress while under Battaglini's care. Kauffman also questioned why Claimant was undergoing physical therapy six years after the onset of his symptoms, noting that the records did not explain why. According to Kauffman, medical literature states that a patient with Claimant's diagnosis should achieve expected outcomes within eight to twenty-four visits over the course of one to six months. Therefore, Kauffman concluded that there was insufficient documentation to justify Battaglini's treatment from March 23, 2011, onward. ( Id.)

The WCJ appointed physical therapist Maureen G. O'Leary to conduct an independent UR. At her deposition, O'Leary testified that she evaluated Claimant on October 20, 2011, when Claimant was 73 years old. O'Leary indicated that after Claimant's work injury, he had back surgery during which rods and screws were inserted to stabilize his fractures. Claimant received physical ...


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