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Weston v. Workers' Compensation Appeal Board6/12/2002
Salema Weston (Claimant) petitions for review of the July 18, 2000 and December 12, 2001 orders of the Workers' Compensation Appeal Board (Board) that affirmed respective orders of the Workers' Compensation Judge (WCJ) granting a termination petition on behalf of Clivenden Convalescent Home (Employer) and denying Claimant's remanded petition for review of utilization review determination (UR petition). Claimant contends that the testimony of Dr. Jose Auday, a medical witness for Employer, was insufficient to support a termination of benefits in that it failed to establish that an independent cause existed for Claimant's C4-5 and C5-6 herniated discs. Claimant also contends that the WCJ's findings are internally inconsistent in that he accepted as credible both Dr. Auday's testimony that Claimant had fully recovered and the testimony of Dr. Dane Wukich, another witness for Employer, who allegedly opined that Claimant had not fully recovered. We affirm.
On January 20, 1993, while working for Employer as a nurse's assistant, Claimant sustained a work-related injury. On February 9, 1993, Employer's insurer issued a notice of compensation payable (NCP) providing Claimant with total disability benefits in the amount of $237.50 per week, based on an average weekly wage of $345.71. The NCP described Claimant's injury as "right trapezius sprain/strain."
On May 8, 1995, Claimant filed a UR petition seeking review of physical therapy/modalities rendered by United Medical Associates, P.C., from August 31, 1993 and continuing thereafter. On October 2, 1995, Employer filed a termination petition alleging that as of September 12, 1995, Claimant had fully recovered from her work injury.
The WCJ accepted as credible and persuasive Dr. Auday's opinion that as of September 12, 1995, Claimant had fully recovered from her work injury. The WCJ also accepted the testimony and opinions of Dr. Wukich to the extent they established that the physical therapy treatment rendered to Claimant after July 7, 1993 was not reasonable or necessary for the care, treatment or management of her work injury. The WCJ rejected the testimony and opinions of Claimant's medical expert, Dr. Stephen F. Fabian, as less persuasive than those of Drs. Auday and Wukich. The WCJ also rejected Claimant's testimony to the extent it was inconsistent with that of Drs. Auday and Wukich.
As a result, the WCJ granted Employer's termination petition, effective September 12, 1995, and denied Claimant's UR petition on the ground that Claimant failed to prove that the physical therapy treatment administered by United Medical Associates was reasonable or necessary on or after August 31, 1993.
On appeal, the Board determined that the WCJ improperly placed the burden of proof on Claimant in the UR petition proceeding to demonstrate that the physical therapy treatment was reasonable and necessary. As the Board correctly noted, Employer had the burden of proving that the physical therapy treatment was not reasonable or necessary. Therefore, the Board remanded the matter to the WCJ for the sole purpose of applying the correct burden of proof on the UR petition. The Board affirmed the WCJ's order in all other respects.
On remand, the WCJ determined that Employer met its burden of proving that the physical therapy treatment at issue was not reasonable or necessary from August 31, 1993 to September 12, 1995, the date of termination. In its December 12, 2001 order, the Board affirmed. Claimant's appeal to this Court followed.
On review, this Court is limited to a determination of whether the necessary findings of fact are supported by substantial evidence, whether errors of law have been
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