Pa Turnpike Com'n v. Wcab (Collins)

709 A.2d 460
CourtCommonwealth Court of Pennsylvania
DecidedApril 6, 1998
StatusPublished

This text of 709 A.2d 460 (Pa Turnpike Com'n v. Wcab (Collins)) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pa Turnpike Com'n v. Wcab (Collins), 709 A.2d 460 (Pa. Ct. App. 1998).

Opinion

709 A.2d 460 (1998)

PENNSYLVANIA TURNPIKE COMMISSION, Petitioner,
v.
WORKERS' COMPENSATION APPEAL BOARD (COLLINS), Respondent.

Commonwealth Court of Pennsylvania.

Argued February 10, 1998.
Decided April 6, 1998.

Neil T. Dombrowski, Philadelphia, for petitioner.

Christina J. Barbieri, Philadelphia, for respondent.

Before FRIEDMAN and KELLEY, JJ., and JIULIANTE, Senior Judge.

FRIEDMAN, Judge.

The Pennsylvania Turnpike Commission (Employer) appeals from an order of the Workers' Compensation Appeal Board (WCAB) which affirmed the decision of a workers' compensation judge (WCJ) granting benefits to William Collins (Claimant) and directing Employer to pay certain of Claimant's medical expenses. We affirm.

Claimant worked as a toll collector for Employer. In February of 1993, Claimant filed a Claim Petition alleging that, on July 23, 1992, he suffered a compensable work-related injury to his right ribs and left shoulder when he slipped and fell on roadway grease.[1] Employer filed a timely answer denying all material allegations in the Claim Petition, and hearings were held before a WCJ.

At the hearings, Claimant testified on his own behalf, describing his work duties and the events of July 23, 1992. He testified that immediately following his fall at work, he was taken to the hospital by ambulance and, one day later, began treating with John Eshleman, D.O., who had treated Claimant for a prior work injury. (R.R. at 455a-60a, 464a-65a.) In December 1992, through Dr. Eshleman's referral, Claimant underwent an electromyographic (EMG) study with Jennifer Chu, M.D., and Claimant came under Dr. Chu's care in January of 1993. Claimant stated that, with Dr. Chu, he receives treatment consisting of intramuscular stimulation, a non-acupuncture technique involving the utilization of dry needles to elicit twitching in the muscles. (R.R. at 461a-62a.) Claimant also stated that, although Employer made work as a toll collector available to him in February of 1993, (WCJ's Findings of Fact, No. 13; R.R. at 125a), he was physically unable to return to such work until February 9, 1994. (R.R. at 550a-52a.)

*461 Claimant also presented the June 18, 1993 and February 4, 1994 deposition testimony of Dr. Chu,[2] who is Board-certified in electrodiagnostic medicine, pain management and physical medicine and rehabilitation. Dr. Chu testified that Claimant's EMG results indicated multiple nerve root damage concentrated on his left side, (Dep. 6/18/93 at 9-10, R.R. at 140a-41a), and Claimant's physical examination indicated a limited range of motion in Claimant's neck and left shoulder along with autonomic nerve instability. (Dep. 6/18/93 at 10, 27, R.R. at 141a-44a, 158a.) Based on the EMG, the examination results and Claimant's complaints of pain when he came to Dr. Chu for treatment in January of 1993, Dr. Chu began to treat Claimant using intramuscular stimulation, or dry needling, to help relieve Claimant's neck and shoulder pain. (Dep. 6/18/93 at 15-17, R.R. at 146a-48a, 154a-57a.) In her testimony, Dr. Chu described this technique at length and stated that it constituted reasonable and necessary treatment because, unlike the more conventional therapy that had been administered to Claimant, this course of care had improved Claimant's physical abilities and reduced his level of pain, resulting in significant overall improvement. (Dep. 6/18/93 at 17-23, 37, R.R. at 148a-54a, 168a; Dep. 2/4/94 at 5, 38, R.R. at 323a, 356a.) Dr. Chu denied that dry needling is an experimental treatment, (Dep. 2/4/94 at 39, 61 R.R. at 357a, 379a), and she provided an article detailing a study on the technique. (R.R. at 404a-26a.) Finally, Dr. Chu indicated that Claimant's condition resulted from his fall on July 23, 1992, (Dep. 6/18/93 at 29, R.R. at 160a), and that the condition precluded his return to work at that time. (Dep. 6/18/93 at 32-35, R.R. at 163a-66a.) (See also WCJ's Findings of Fact, No. 7.)

In opposition to Claimant's medical evidence, Employer presented the depositions of Leonard Klinghoffer, M.D., and Daniel Skubrick, M.D.. Drs. Klinghoffer and Skubrick both performed their own physical examination of Claimant and, based upon the examination, deemed that Dr. Chu's treatment of Claimant was neither reasonable, necessary nor related to Claimant's diagnosis and symptomatology. (See WCJ's Findings of Fact, Nos. 9-11.)

At the May 20, 1994 hearing before the WCJ, Employer requested peer review (PR) with respect to the reasonableness and necessity of Dr. Chu's procedure pursuant to section 420(a) of the Pennsylvania Workers' Compensation Act (Act),[3] 77 P.S. § 831, part of the statutory provisions added to the Act by the Act of July 2, 1993, P.L. 190, commonly known as "Act 44." However, although tempted to grant Employer's request, the WCJ ultimately found that such action was unnecessary; the WCJ concluded that, because he had sufficient information on the matter from both parties' medical experts, he could render a decision on the issue without resort to PR.

After considering the evidence adduced at the hearings, the WCJ determined that Claimant's testimony regarding the events of July 23, 1992 and his inability to return to work before February 9, 1994 was persuasive. (WCJ's Findings of Fact, No. 16.) In addition, the WCJ accepted the testimony of Drs. Eshleman and Chu as more persuasive than the testimony of Drs. Skubrick and *462 Klinghoffer with regard to the nature and extent of Claimant's work injury. (WCJ's Findings of Fact, No. 17.) The WCJ then went on to find that the intramuscular stimulation administered by Dr. Chu was reasonable, related and necessary medical treatment. (WCJ's Findings of Fact, No. 18.) Based on these findings, the WCJ granted Claimant's Claim Petition, awarding Claimant total disability benefits from July 24, 1992 through February 8, 1994 and partial disability benefits thereafter to reflect Claimant's return to work on February 9, 1994 with residual medical impairment. In addition, the WCJ awarded medical expenses covering Dr. Chu's treatment.[4] (See R.R. at 23a.)

Employer appealed to the WCAB arguing that the WCJ erred in refusing to submit the question of the reasonableness and necessity of Dr. Chu's treatment to peer review pursuant to section 420 of the Act and, further, that the record did not contain substantial evidence to support the WCJ's finding that the treatment provided by Dr. Chu was reasonable and necessary.[5] The WCAB disagreed with both of Employer's arguments[6] and, accordingly, affirmed the WCJ.

On appeal to this court,[7] Employer first argues that the WCJ lacked jurisdiction, in the context of Claimant's Claim Petition proceeding, to make findings with regard to the reasonableness and necessity of Dr. Chu's medical treatment of Claimant and to decide whether that treatment was, in fact, reasonable and necessary. Employer contends that, as of the enactment of Act 44, Act 44's statutory cost containment provisions provide the exclusive method for determining questions with respect to the reasonableness and necessity of medical treatment, either through the utilization review process (UR) found in section 306(f.1)(6) of the Act, 77 P.S. § 531(6), or through PR under section 420 of the Act. Employer points out that, here, the WCJ received, but denied, a request for PR under section 420(a) of the Act.

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709 A.2d 460, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pa-turnpike-comn-v-wcab-collins-pacommwct-1998.