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Case Law - save on Lexis / WestLaw. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Arturo Zilleruelo, : Petitioner : : v. : No. 1391 C.D. 2004 : Workers' Compensation : Submitted: November 5, 2004 Appeal Board (Goulds Pump, Inc.), : Respondent : BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE JESS S. JIULIANTE, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE JIULIANTE FILED: February 17, 2005 Arturo Zilleruelo (Claimant) petitions for review of the June 7, 2004 order of the Workers' Compensation Appeal Board (Board) affirming the order of the Workers' Compensation Judge (WCJ) that (1) denied Claimant's petition to review medical treatment and/or billing, (2) denied Claimant's petition to review utilization review, (3) granted in part and denied in part the petition to terminate benefits filed on behalf of Gould Pumps, Inc. (Employer), (4) granted Claimant's petition to review compensation benefits and (5), denied Claimant's petition to reinstate total disability compensation benefits. We affirm as modified. Claimant sustained a compensable injury to his low back on June 14, 1990. Employer acknowledged Claimant's injury and issued a notice of compensation payable awarding Claimant weekly compensation benefits in the amount of $419.00 per week. In a decision dated July 5, 1994, WCJ Karl Baldys entered an order modifying Claimant's compensation rate to $319.03 per week upon Employer's proof that Claimant was capable of performing part-time work. Thereafter, on April 30, 1997, WCJ Audrey Beach entered an order wherein she denied both Claimant's petition to reinstate benefits and Employer's petition to terminate benefits based on her findings that neither party met its burden of proof. Both parties appealed to the Board and, in a decision circulated October 14, 1998, the Board affirmed WCJ Beach's decision in part and vacated and remanded it in part. The Board affirmed the denial of Claimant's petition for reinstatement of benefits. With regard to Employer's termination petition, however, the Board concluded that the testimony of Dr. Michael Epstein, Employer's medical expert, failed to resolve the issue of whether Claimant was fully recovered from his work injury or whether he was capable of returning to work without restrictions. Thus, the Board remanded the matter for further findings regarding the possibility of a "functional overlay" and a more developed termination analysis. Subsequently, Employer filed a request for utilization review seeking a review of the reasonableness and necessity of medical treatment rendered to Claimant from May 19, 1998 forward by Community Health Projects Medical Group and Dr. Forest Tennant, who prescribed narcotics for Claimant. A second request for utilization review was later filed seeking a review of the reasonableness and necessity of medical treatment rendered to Claimant from July 22, 1997 forward by Dr. Steve Fanto.1 The utilization reviews found the treatments offered 1 Claimant now lives in Arizona. Dr. Tennant practices in California and to receive treatment, Claimant must travel six hours one way. Claimant treats with Dr. Tennant once every three months. Dr. Fanto practices in Arizona. 2 by Community Health, Dr. Tennant and Dr. Fanto to be unreasonable and unnecessary. Claimant consequently filed petitions to review utilization reviews. Additionally, Claimant filed a petition to review medical treatment, alleging that Employer refused to pay for Claimant's pain medication prescriptions. Employer answered that the proper method for challenging issues of reasonableness and necessity for medical treatment is the utilization review process. Claimant also filed a petition to reinstate benefits alleging that he is totally disabled as of August 18, 2000. All the outstanding petitions were thereafter consolidated for disposition. In a March 27, 2002 order, WCJ Susan Caravaggio found that Claimant had fully recovered from the physical aspects of his work injury as of September 14, 1995, but that Claimant also suffers from a psychiatric disorder in the nature of an "adjustment disorder with anxiety and depressed mood" as a result of his work injury. The WCJ further concluded, however, that the adjustment disorder is in remission and does not render Claimant disabled from working. Accordingly, the WCJ ordered Employer to be responsible for medical treatment and/or prescription medications relating to Claimant's adjustment disorder; Employer was held not to be responsible for wage loss benefits. The WCJ therefore granted Employer's petition to terminate in part as it related to the physical aspect of Claimant's injury and denied the petition in part as it related to Claimant's psychiatric condition. With regard to Claimant's petitions to review utilization reviews, the WCJ found in favor of Employer in that the treatment rendered by Community Health, Dr. Tennant and Dr. Fanto was found to be unreasonable and unnecessary inasmuch as Claimant recovered from his work injury as of September 1995. The WCJ further denied Claimant's petition to review medical treatment with regard to Claimant's prescription medications on the basis that the prescriptions were not 3 causally related to Claimant's work injury. Finally, the WCJ concluded that Claimant did not become totally disabled as of August 18, 2000 in that he remains fully recovered from the work injury and is not disabled as a result of his adjustment disorder. Therefore, Claimant's petition for reinstatement of benefits was denied. Claimant appealed to the Board, which affirmed the WCJ's decision and order. On review, we are limited to determining whether the necessary findings of fact are supported by substantial evidence, whether errors of law were made or whether constitutional rights were violated. Morris Painting, Inc. v. Workers' Compensation Appeal Board (Piotrowski), 814 A.2d 879 (Pa. Cmwlth. 2003). This Court also recognizes that "[t]he WCJ, as the ultimate factfinder, is the sole arbiter of the credibility and weight of the evidence." Rissi v. Workers' Compensation Appeal Board (Tony DePaul & Son), 808 A.2d 274, 278 (Pa. Cmwlth. 2002), appeal denied, 573 Pa. 687, 823 A.2d 146 (2003). "We will not reweigh evidence or substitute our judgment for the credibility determination of the WCJ." Id. at 279. It is also well settled that "[t]he WCJ is free to accept or reject the testimony of any witness, including a medical witness, in whole or in part." McNulty v. Workers' Compensation Appeal Board (McNulty Tool & Die), 804 A.2d 1260, 1263 n.2 (Pa. Cmwlth. 2002), appeal denied, 574 Pa. 756, 830 A.2d 977 (2003). In termination proceedings, the employer bears the burden of proving either that the claimant's disability has ceased or that any current disability arises from a cause unrelated to the claimant's work injury. Campbell v. Workers' Compensation Appeal Board (Antietam Valley Animal Hosp.), 705 A.2d 503 (Pa. Cmwlth. 1998). When a claimant asserts that a subsequent, physical injury has resulted from attempts to treat the claimant's work injury, the subsequent injury 4 caused by the treatment is a compensable injury. Workmen's Compensation Appeal Board v. Ira Berger & Sons, 470 Pa. 239, 368 A.2d 282 (1977). However, when a claimant receiving benefits based on a physical injury subsequently alleges a psychological injury as the basis for continued disability, the claimant must prove a causal connection between the work injury and the psychological injury. Commercial Credit Claims v. Workmen's Compensation Appeal Board (Lancaster), 556 Pa. 325, 728 A.2d 902 (1999). Claimant first contends that the WCJ and Board erred in failing to recognize his addiction to narcotics is a result of his work injury. He claims that the record is replete with references to the fact that the prescriptions were prescribed to alleviate the pain associated with his work injury. The term "habituation" is defined as follows: "the act or process of making habitual or accustomed ... tolerance to the effects of a drug acquired through continued use and manifested by decreasing effectiveness of the same amount of drug administered in successive doses ... the psychic or emotional counterpart of acquired tolerance that is manifested by psychologic dependence upon a drug after a period of use ...." Webster's Ninth New International Dictionary 1017 (1993) (emphasis added). Because Claimant's addiction to narcotics represents a psychological injury, he was required to establish a causal connection between his work-related back injury and his drug addiction. Commercial Credit. Our review of the record reveals that neither Dr. Robert Bevan, Employer's expert psychiatric witness, nor Dr. Epstein, opined that Claimant's addiction to narcotics was caused by the pain due the physical aspects of his work injury. Based upon his two physical examinations of Claimant and discussions with him, Dr. Epstein testified extensively as to his opinion that Claimant has fully recovered from his work injury as of September 1995 and that Claimant engages in 5 symptom magnification. Dr. Bevan found that Claimant suffers from a mild adjustment disorder with anxiety and depressed mood. While recognizing that Claimant's addiction to narcotics impairs his work ability, Dr. Bevan did not attribute Claimant's narcotics addiction to the accepted work injury and did not attribute his work impairment to his adjustment disorder. The WCJ accepted the doctors' opinions as credible, logical, internally consistent and persuasive.2 Thus, the record does not support a causal connection between Claimant's compensable back injury and his addiction to narcotics. Claimant further argues that inasmuch as Dr. Epstein acknowledged that Claimant must be weaned from the narcotics and Dr. Bevan opined that Claimant's adjustment disorder impairs his ability to work, it was in error to terminate Claimant's benefits. We disagree with Claimant's interpretation of the record. As previously noted, Claimant's addiction to narcotics has not been determined to be a result of the work injury. Moreover, Dr. Bevan stated that Claimant's addiction to narcotics, and not the medications taken for his adjustment disorder, prevent him from performing his time-of-injury job with Employer. (Employer's Exhibit 2, p.48) With regard to Claimant's adjustment order, Dr. Bevan opined that Claimant was "relatively asymptomatic," that he was "currently 2 Although the WCJ did not find Claimant's expert medical witnesses to be credible, we note that Dr. Fanto did not testify that Claimant suffers from an addiction to narcotics. At the time of his November 21, 2000 deposition, Dr. Fanto stated that Claimant suffered from intractable chronic low back pain and myofascial pain. (Claimant's Exhibit 9, p.22) Without commenting on Claimant's addiction to narcotics, Dr. Fanto found that the use of narcotics was reasonable and necessary to Claimant's treatment. Regardless, Dr. Fanto began treating Claimant nearly two years after the date upon which the WCJ determined that Claimant had fully recovered. In his December 8, 2000 deposition, Dr. Tennant stated that Claimant is addicted physically on opiates to alleviate his pain. (Claimant's Exhibit 10, p.29) The WCJ also rejected (Footnote continued on next page...) 6 in remission," and that his mild-impairment for work-related activities is "related to this intake of opiate analgesics." (Id. at 36, 37, 39)(Emphasis added.) Thus, Claimant's mild impairment is not due to his adjustment disorder the only condition recognized as being causally-related to the work injury.3 Claimant further contends that the WCJ erred by not addressing the issue of functional overlay, as a required by the Board's October 14, 1998 remand order. A "functional overlay" is [a]n impairment, apparently physical, affecting the use or operation of some bodily part, but without measurable structural or organic change, usually produced by an emotional or mental abnormality or conflict. It may overlay, compound or even obscure symptoms of a co- existing true organic disease. Am.Jur. Proof of Facts, Fact Book with Medical Glossary, p. 974 (1983). County of Dauphin v. Workmen's Compensation Appeal Board (Davis), 582 A.2d 434, 436 (Pa. Cmwlth. 1990). "A disability resulting from a work-related physical injury later supplemented by a psychogenic component is referred to as a (continued...) Dr. Tennant's testimony. Dr. Tennant's initial evaluation of Claimant did not note addiction to narcotics and the doctor was not asked at what point in time Claimant became addicted to them. 3 Claimant also complains that the WCJ and Board erred in failing to recognize that his prescriptions for narcotics and treatment by Drs. Fanto and Tennant are reasonably and necessarily related to the work injury. We reject Claimant's arguments on several grounds: first, Drs. Fanto and Tennant treat Claimant for pain due to his work injury, not for his adjustment disorder. Dr. Tennant began treating Claimant just two months before Claimant's recovery date; Employer's utilization review sought to review the treatment rendered by Dr. Tennant from May 19, 1998 forward, eight months after Claimant's recovery. Likewise, Dr. Fanto did not begin treating Claimant until two years after Claimant's full recovery. Secondly, with regard to Claimant's addiction to narcotics, Claimant failed to sustain his burden under Commercial Credit. Thus, with a finding that Claimant fully recovered from his work injury as of September 1995 and without a finding that the 1990 work injury resulted in his drug addiction, any prescriptions for narcotics and treatment for pain after his recovery were not reasonable or necessary for the treatment of the work injury. 7 `functional overlay' and, because it is a result of the work-related injury, is fully compensable." Id. (Footnote omitted.) We find the WCJ's failure to specifically address the issue of a functional overlay to be harmless. The accepted medical evidence of record is that Claimant suffers an adjustment disorder resulting from his 1990 work injury. That disorder, however, is not the cause of Claimant's current disability, i.e. loss of earning power. See Kmart v. Workers' Compensation Appeal Board (Williams), 771 A.2d 82 (Pa. Cmwlth. 2001)(for purposes of workers' compensation, the term "disability" is synonymous with loss of earning power; it does not refer to physical impairment). Consequently, because the psychiatric component of Claimant's work injury does not impair his ability to work, there is no functional overlay. Notwithstanding, we conclude that a termination of Claimant's benefits was inappropriate. Although Claimant has fully recovered from the physical aspects of his work injury, he has not fully recovered from his psychiatric injury inasmuch as he continues to suffer an adjustment disorder, albeit in remission. Therefore, a suspension of Claimant's benefits is appropriate. See generally, Hertz Penske Truck Leasing Co. v. Workmen's Compensation Appeal Board (Bowers), 546 Pa. 257, 684 A.2d 547 (1996)(a suspension of benefits is appropriate under Section 413 of the Workers' Compensation Act4 where the claimant does not return to work and his loss of earning power is no longer affected by his work injury). 4 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 772. 8 Accordingly, we affirm the Board's order with the modification that Claimant's benefits are suspended rather than terminated.5 JESS S. JIULIANTE, Senior Judge Judge Smith-Ribner dissents. 5 Our order modifying Claimant's benefit status is consistent with the WCJ's Conclusion of Law No. 5, where she granted Claimant's petition to review compensation benefits to include a psychological injury resulting from the June 14, 1990 work injury. Although the WCJ determined that no benefits are due, Employer remains liable for the payment of reasonable and necessary medical treatment causally related to the psychiatric condition. C.L. No. 5. 9 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Arturo Zilleruelo, : Petitioner : : v. : No. 1391 C.D. 2004 : Workers' Compensation : Appeal Board (Goulds Pump, Inc.), : Respondent : O R D E R AND NOW, this 17th day of February, 2005, the June 7, 2004 order of the Workers' Compensation Appeal Board is AFFIRMED AS MODIFIED. JESS S. JIULIANTE, Senior Judge
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