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Case Law - save on Lexis / WestLaw. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Joseph Markl, : Petitioner : : v. : No. 1263 C.D. 2003 : Argued: February 2, 2005 Workers' Compensation Appeal : Board (J & L/LTV Steel Co.), : Respondent : BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER FILED: March 4, 2005 Claimant Joseph Markl petitions for review of the order of the Workers' Compensation Appeal Board (Board) that affirmed the grant of employer's termination and utilization review petitions and denied Markl's utilization review petition. Markl presents two questions for review: first, whether the Board erred in affirming the termination of his medical benefits when the parties had previously stipulated that he was permanently disabled; and second, whether the Board erred as a matter of law in affirming the Workers' Compensation Judge's (WCJ) decision granting employer's utilization review petition. We affirm. In July 1984, Markl sustained a back injury in the course and scope of his employment with J & L/LTV Steel Company and received total disability benefits pursuant to a Notice of Compensation Payable (NCP) dated August 7, 1984. The NCP described the nature of Markl's injury as lower back pain and awarded Markl $320.00 per week in benefits, based on an average weekly wage of $525.93, for all periods of time that Markl was disabled from work following the injury. On January 21, 1998, the parties entered into a stipulation acknowledging that while Markl remained totally disabled in terms of his overall physical condition due to non-work related causes, as of January 21, 1998, his disability resulting from the July 19, 1984, work injury had resolved into a permanent partial disability, entitling him to wage loss benefits at a rate of $160.00 per week for 500 weeks. The parties further agreed that employer would remain responsible for any reasonable and necessary medical treatment causally related to the work injury. Employer filed a petition for commutation with the Board, requesting that Markl's partial disability benefits be commuted and paid, in full, in one lump sum of $80,000.00. After conducting a hearing on the matter, the Board found that the petition was proper and that, under the circumstances, the commutation was in Markl's best interest. Accordingly, on January 22, 1998, the Board issued an order granting employer's petition and providing, among other things, that employer remain responsible for any reasonable and necessary medical treatment causally related to Markl's work-related injury. In June 2000, employer filed a petition seeking to terminate Markl's medical benefits on the basis that he had fully recovered from his injury as of March 10, 2000. Approximately two months later, employer filed a utilization review request, seeking a determination regarding the treatment rendered to Markl 2 by Drs. Louis W. Heyl and Donald R. Schoenthal, board-certified family physicians. William S. Maigur, M.D., performed the utilization review and found that Markl was appropriately diagnosed with chronic lower back pain and that the treatment in question was reasonable, necessary and effective in controlling Markl's chronic back pain and improving his symptoms. Employer then petitioned for review of Dr. Maigur's utilization review determination and Markl filed his own utilization review petition regarding the treatment provided by Drs. Heyl and Schoenthal. In support of its petitions, employer presented the deposition testimony of Dr. Mark A. Fye, a board-certified orthopedic surgeon, who performed an independent medical examination on Markl. Dr. Fye opined that Markl suffered from a degenerative disc problem that was unrelated to the 1984 work injury and ongoing chronic back pain. Dr. Fye further opined that Markl more than likely suffered a soft tissue strain resulting from the 1984 work injury, that over the years he had become significantly deconditioned, that he needed a continued conditioning program, and that a person's deconditioning from a lumbar strain/sprain could add to an underlying degenerative disc disease. According to Dr. Fye, Markl's current complaints of pain, numbness and tingling were related to the underlying degenerative disc problem. Markl presented the parties' stipulation as well as Dr. Maigur's utilization review determination and the deposition of Dr. Schoenthal, who began treating Markl in February 1990. Dr. Schoenthal determined that Markl suffered from degenerative joint disease, chronic lower back pain, spinal canal stenosis and arachnoiditis. Based on previous examinations by other specialists, the doctor concluded that Markl's condition resulted from the 1984 work injury and that he could not sustain any type of gainful employment. 3 The WCJ accepted Dr. Fye's testimony as more credible and concluded that Markl had fully recovered from the work-related injury as of March 10, 2000, and as a result, the medical treatment rendered by Drs. Heyl and Schoenthal was no longer reasonable or necessary as of the same date. Accordingly, the WCJ granted employer's termination petition and petition to review utilization review determination and dismissed Markl's utilization review petition. The Board affirmed on appeal, concluding that substantial competent evidence supported the finding that Markl had fully recovered from his injury and that the medical treatment rendered by Drs. Heyl and Schoenthal after his recovery was not reasonable and necessary. Claimant's first argument is that the Board erred in affirming the WCJ's decision granting a termination of medical benefits where the parties stipulated that Markl was permanently disabled. Employer contends, however, that this issue has not been properly preserved for appellate review because Markl failed to raise it before the Board in his appeal papers, written brief or oral argument and has failed to raise it in his petition for review filed in this court. We agree that this issue has been waived. It is well-settled that matters not raised before the Board are waived for purposes of appellate review. See Myers v. Workers' Comp. Appeal Bd. (Family Heritage Rest.), 728 A.2d 1021 (Pa. Cmwlth. 1999). Here, Markl's appeal papers to the Board merely contended that the WCJ's findings of fact numbers 5, 6 and 7 were not supported by substantial competent evidence and that conclusion of law number 2 was erroneous as a matter of law.1 Merely asserting that findings 1 In these findings, the WCJ accepted as credible Dr. Fye's testimony that Markl had completely recovered from his work-related injury, rejected Dr. Shoenthal's testimony as less persuasive than Dr. Fye's and, based upon such credibility determinations, concluded that Markl was fully recovered and required no additional medical treatment for his work injury after March (Footnote continued on next page...) 4 regarding credibility of experts and of full recovery are not supported by substantial evidence is not sufficient to preserve the issue of whether employer is estopped from seeking a termination of benefits and the WCJ is precluded from finding full recovery when the parties had stipulated in the context of prior commutation proceedings that the claimant remained permanently partially disabled.2 Markl has also failed to comply with the Rules of Appellate Procedure, which require a petitioner to set forth the location in the record that the issue was raised and preserved below. See Pa. R.A.P. 1551(a); Pa. R.A.P. 2117(c) [requiring statement of the case in appellate brief to identify the place and manner in which issues were raised and preserved below]; and Pa. R.A.P. 2119(e) [requiring argument in appellate brief to identify where issues raised below]. Presumably, he has not so complied because the record cannot support the preservation of this issue. Had Markl argued the question in his brief to the Board, he "[c]ould have requested that the Board certify and transmit a supplemental record containing [its] brief to this Court pursuant to Pa. R.A.P. 1926." Jonathan Sheppard Stables v. Workers' Comp. Appeal Bd. (Wyatt), 739 A.2d 1084, 1089 n.6 (Pa. Cmwlth. 1999) [quoting Williams v. Workmen's Comp. Appeal Bd. (Montgomery Ward), 562 A.2d 437, 439 n.3 (Pa. Cmwlth 1989)]. Indeed, the _____________________________ (continued...) 10, 2000, and that any treatment rendered after that date was not reasonable, necessary or causally related to the work injury. In conclusion of law number 2, the WCJ reiterated that based upon his finding that Markl had fully recovered, medical treatment after March 10, 2000, was not reasonable or necessary. 2 But cf. Garnett v. Workmen's Comp. Appeal Bd. (Equitable Gas Co.), 631 A.2d 705 (Pa. Cmwlth. 1993) (employer's notice of appeal to Board held sufficient to notify Board of issues raised on appeal even though notice only listed by number the findings of fact and conclusions of law at issue). 5 Board's failure to address this issue in its opinion supports employer's assertion that Markl did not argue the issue in his brief or at oral argument. Finally, the issue is waived as a result of Markl's failure to include it in his petition for review in this court as required by Rule of Appellate Procedure 1513 [Petition for Review]. This court has consistently interpreted Rule 1513 to provide that issues not raised in the petition for review are waived on appeal to this court. See generally Essroc Materials v. Workers' Comp. Appeal Bd. (Braho), 741 A.2d 820 (Pa. Cmwlth. 1999); McKay v. Workmen's Comp. Appeal Bd. (Osmolinski), 688 A.2d 259 (Pa. Cmwlth. 1997). Here, Markl's petition for review fails to contain any statement whatsoever which would encompass this issue. Therefore, Markl has waived the issue as a result of his failure to raise it before the Board or in his petition for review. Markl's second contention is that the Board erred in affirming the WCJ's determination granting employer's utilization review petition. The employer bears the burden of proof throughout a utilization review proceeding. Topps Chewing Gum v. Workers' Comp. Appeal Bd. (Wickizer), 710 A.2d 1256 (Pa. Cmwlth. 1998). Employer had challenged as unreasonable and unnecessary all treatment rendered to Markl by Drs. Heyl and Schoenthal on or after August 15, 2000. Inasmuch as the WCJ determined that Markl had fully recovered from his 1984 work injury as of March 10, 2000, we conclude that the WCJ did not err in determining that, as of March 10, 2000, Drs. Heyl's and Schoenthal's treatment of Markl was no longer reasonable or necessary for his work injury. In view of the foregoing, we affirm the order of the Board. ________________________________________ BONNIE BRIGANCE LEADBETTER, Judge 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Joseph Markl, : Petitioner : : v. : No. 1263 C.D. 2003 : Workers' Compensation Appeal : Board (J & L/LTV Steel Co.), : Respondent : O R D E R AND NOW, this 4th day of March, 2005, the order of the Workers' Compensation Appeal Board in the above captioned matter is hereby AFFIRMED. ________________________________________ BONNIE BRIGANCE LEADBETTER, Judge
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