Kijewski v. Workers' Compensation Appeal Board2/12/2002
Submitted: December 7, 2001
OPINION NOT REPORTED
David Kijewski (Claimant) petitions for review of a June 18, 2001 order of the Workers' Compensation Appeal Board (WCAB) affirming a workers' compensation judge's (WCJ) decision to deny Claimant's petition for review of a utilization review (UR) determination and to grant Varano's Warehouse, Inc.'s (Employer) suspension petition based on Claimant's refusal to undergo reasonable medical treatment. We affirm in part and reverse in part.
On January 31, 1996, Claimant suffered a work-related back injury, which Employer acknowledged with a Notice of Compensation Payable. On April 1, 1997, Employer filed a UR request under section 306(f.1)(6) of the Workers' Compensation Act (Act) seeking review of certain intravenous (IV) therapy treatments performed by Claimant's treating physician, Mamood Nasir, M.D., from March 4, 1997 onward. On May 23, 1997, Richard T. D'Addario, M.D. submitted a UR report, opining that IV Robaxin therapy was not reasonable and necessary medical treatment after March 4, 1997. Unhappy with this UR determination, Claimant filed a petition for de novo review of the UR determination (UR review petition) with the Bureau of Workers' Compensation.
On May 5, 1998, pursuant to section 306(f.1)(8) of the Act, 77 P.S. ยง531(8), Employer filed a petition for suspension of Claimant's benefits as of April 15, 1998 (suspension petition), alleging that Claimant refused reasonable medical treatment by failing to take part in active, goal-oriented physical therapy in order to improve his condition.
Claimant's UR review petition and Employer's suspension petition were consolidated for hearing and decision by a WCJ.
In support of its suspension petition, Employer submitted the deposition testimony of Edwin Aquino, M.D., who conducted independent medical examinations (IME) of Claimant on June 28, 1996 and October 9, 1997.
According to Dr. Aquino, Claimant suffered from a lumbosacral sprain/strain mechanism and an L4-5, L5-S1 disc protrusion. (R.R. at 12a.) Dr. Aquino testified that his recommendation, which he shared with Claimant, was that Claimant undergo "active goal oriented physical therapy." (R.R. at 31a, 42a.)
According to Dr. Aquino, active physical therapy is far superior to the passive therapy Claimant had been receiving in the form of IV treatment by Dr. Nasir, (R.R. at 31a), and "can improve the musculoskeletal functions of the patient." (R.R. at 34a.)
Claimant presented the deposition testimony of Dr. Nasir, a neurologist, with whom Claimant has treated since March 11, 1996. Like Dr. Aquino, Dr. Nasir testified that Claimant's MRI revealed a disk herniation at L4-5 and L5-S1. (R.R. at 196a.) However, Dr. Nasir disagreed with Dr. Aquino's diagnosis of lumbosacral sprain. (R.R. at 134a-136a.) According to Dr. Nasir, Claimant suffers from lumbar radiculopathy, (R.R. at 199a), and "failed back syndrome," i.e., chronic back pain involving permanent nerve damage for which there is no cure. (R.R. at 130a-131a, 209a.)
Dr. Nasir testified that he has treated Claimant with various pain medications and muscle relaxants taken orally, but when Claimant is in severe pain, he gives Claimant IV therapy, which involves administering the same medications intravenously. (R.R. at 146a-149a, 202a-205a.) According to Dr. Nasir, this treatment has been satisfactory in controlling Claimant's pain but will be necessary for the rest of Claimant's life. (R.R. at 141a-149a, 210a.) Dr. Nasir testified that physical therapy "has little to offer" to someone like Claimant and "is not going to change his pain level." (R.R. at 132a-133a.) Dr. Nasir further
Page 1 2 3 Pennsylvania Employee Leasing Services
Employee Leasing Services
|