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Haslam v. Workers' Compensation Appeal Board (London Grove Communication)

Commonwealth Court of Pennsylvania

September 1, 2017

Thomas Haslam, Petitioner
v.
Workers' Compensation Appeal Board (London Grove Communication), Respondent

          SUBMITTED: February 10, 2017

          BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE JULIA K. HEARTHWAY, Judge HONORABLE DAN PELLEGRINI, Senior Judge

          OPINION

          JULIA K. HEARTHWAY, JUDGE

         Thomas Haslam (Claimant) petitions for review of the September 9, 2016 order of the Workers' Compensation Appeal Board (Board), which reversed the decision of a workers' compensation judge (WCJ). The Board granted the petition of London Grove Communication (Employer) to review utilization review (UR) determination and denied Claimant's petition to review medical treatment and/or billing (Medical petition). For the reasons set forth below, we reverse.

         On February 16, 1998, Claimant was injured in the course and scope of his employment with Employer when he fell off of a building and shattered his right ankle, tibia, and fibula, and suffered a left calcaneus fracture, as well as injuries to his neck and low back. Employer issued a notice of compensation payable (NCP), accepting Claimant's injury.[1] A supplemental agreement was entered into between the parties on January 29, 2001. The supplemental agreement modified Claimant's indemnity benefits as of October 24, 2000, due to Claimant's return to work with a loss of earnings. The injury information refers to Claimant's injury as "R & L Foot Fracture." (Supp. Agrmt., at 1.) Thereafter, in 2008, the parties entered into a compromise and release agreement (C&R Agreement) and settled the indemnity portion of the case for $110, 000.00.[2]

         Thereafter, Employer filed a UR request, seeking review from January 6, 2014 and ongoing "on any and all compounded medication" provided by Evan D. Frank, M.D. (UR request, at 1.) On February 19, 2014, the UR was assigned to Administrative Reviewer Michael J. Drass, M.D. Dr. Drass performed the UR of Claimant's compounded medications from January 6, 2014, and prospectively, and determined that they were reasonable and necessary expenses related to the acknowledged work-injury.

         On May 20, 2014, Employer filed the instant UR review petition, challenging the UR determination of Dr. Drass. Employer argued that the condition Claimant was being treated for by Dr. Frank, RSD/CRPS, [3] was not expressly accepted by Employer in the C&R Agreement. Thus, Employer asserted that Dr. Drass' UR determination was in error.

         On May 30, 2014, Claimant filed the Medical petition alleging an incorrect injury description and worsening of his condition. Claimant requested recognition of the RSD/CRPS as being related to his February 16, 1998 work injury and a determination regarding whether certain treatment was related thereto.

         Hearings were held before the WCJ, at which Employer presented the April 23, 2014 UR performed by Dr. Drass. Dr. Drass determined that the compounded medication reviewed was reasonable and necessary. (UR Determination, at 2.) Dr. Drass' UR report indicated a diagnosis from Dr. Frank of "neuropathic pain of both feet." (UR Report, at 2.) Dr. Drass reviewed Claimant's medication regimen, which included various doses of Vioxx, Elavil, OxyContin, and Percocet each day. Dr. Drass listed Claimant's diagnoses as RSD/CRPS of the lower extremities with increasing depression secondary to situational anxiety, low back pain, chronic lower extremity pain. (Id.) Dr. Drass looked at the "compounded medication" prescribed by Dr. Frank from January 6, 2014, and specifically, the standard antineuropathic cream.[4] (Id., at 3.) Dr. Drass determined that the antineuropathic cream does provide Claimant "with some good relief of his lower extremity RSD/CRPS complaints, thereby allowing him to continue to perform his daily activities on a fairly remarkable level." (Id.) Thus, he concluded that the compounded medication was reasonable and necessary. (Id., at 5.)

         Claimant also presented the July 22, 2014 narrative report of Dr. Frank. The report was dictated at Claimant's request to justify Dr. Frank's treatment regarding the medications prescribed to Claimant from January 6, 2014 and forward. Dr. Frank reported that Claimant had undergone surgical fusion, and open reduction internal fixation surgery due to the fractures he suffered after the work-related fall. (Dr. Frank Report, at 1.) Dr. Frank observed that the fractures healed but Claimant had continuing pain. (Id.) Dr. Frank diagnosed Claimant with RSD/CRPS and sees Claimant every three to six months. (Id.) Dr. Frank treats Claimant's pain with various medications, including the antineuropathic cream, which Claimant found beneficial. (Id.) Dr. Frank stated that "the treatment involving the compounded medications are appropriate and necessary for controlling this patient's pain and symptoms from RSD." (Id., at 2.)

         The WCJ found the reports of Dr. Frank and Dr. Drass credible and persuasive. The WCJ stated that:

Both Dr. Frank and Dr. Drass support the care under review as reasonable and necessary; both also support additional injuries as noted above as being within the ambit of accepted injuries as described in the C&R Agreement. In this regard, even without reference to "various injuries" under the C&R [Agreement] (under which the ambit of additional conditions would qualify), relief can appropriately be granted to the Claimant in that this record supports the additional conditions as resulting from the accepted "R and L Foot Fracture" work injuries described in both the Supplemental Agreement and the C&R Agreement. The record as presented clearly implicates the foot fractures as the operative reason for Claimant's continuing work related problems despite healing of the "fractures" themselves-Claimant's continuing problems flow from the existing "fractures."

         (F.F. No. 8.)

         The WCJ denied Employer's Review UR petition and granted Claimant's Medical petition, finding the treatment under review reasonable and necessary as determined by Dr. Drass and that the treatment for RSD/CRPS was within the scope of the C&R Agreement. Employer appealed to the Board.

         The Board determined that the C&R Agreement precluded Claimant from expanding the description of his injury. The Board agreed that Employer "remained responsible for all reasonable and necessary medical expenses related to the acknowledged injuries." (Board Op. at 1.) However, the Board found that Claimant's RSD/CRPS diagnosis was not acknowledged by the C&R Agreement. Thus, it determined that Employer is not responsible for the medical expenses related to the RSD/CRPS diagnosis. The Board noted that the C&R Agreement was entered into approximately five years after Claimant began treating with Dr. Frank for the RSD/CRPS. The Board asserted that "[t]o construe 'various injuries' as wholly open-ended is to defeat the ...


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