IN THE COMMONWEALTH COURT OF PENNSYLVANIA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Perry,

:

Petitioner :

:

v.

:

:

Workers' Compensation Appeal

:

Board (MidAtlantic Hose Center, LLC), :

Respondent :

No. 467 C.D. 2014 Submitted: August 29, 2014

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE SIMPSON

FILED: October 29, 2014

Michael Perry (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) affirming an order of a workers' compensation judge (WCJ) that denied Claimant's review petition seeking to add a psychiatric injury to his previously accepted work-related injuries, and denied in part Claimant's petition to review utilization review determinations (UR review petitions) regarding ongoing treatment by two of Claimant's regular treating physicians. Claimant contends the Board, in performing only a cursory review of the record, failed to identify substantial material omissions, errors and inconsistencies in the WCJ's findings, which render the WCJ's decision not properly reasoned concerning the description of the work injury and the UR review petitions. Claimant further contends the Board erred in failing to hold a UR determination untimely and thus inadmissible. Upon review, we affirm.

I. Background A. NTCP; 2009 WCJ Decision In August 2007, while employed by MidAtlantic Hose Center, LLC (Employer), Claimant sustained a work injury while breaking loose a hose from a piece of heavy equipment. Two days after the injury, Employer issued a notice of temporary compensation payable (NTCP) acknowledging Claimant's work injury as an upper back and neck strain.

In June 2009, a WCJ issued an order granting Claimant's review petition with respect to the description of the work injury. The WCJ determined that in addition to the previously recognized injuries, Claimant sustained an aggravation and exacerbation of an L5-S1 spondylolisthesis, strain and sprain of the lower cervical and thoracic spine with fibromyositis of the lower cervical and thoracic spine, and aggravation of facet disease in the upper thoracic spine.

B. Claimant's UR Review and Review Petitions; Employer's Termination Petition

In August 2011, Claimant filed three UR review petitions seeking review of the medical services provided by his two primary treating physicians and a pain specialist. In addition, Claimant filed two review petitions alleging he suffers from reflex sympathetic dystrophy, also known as complex regional pain syndrome (RSD/CRPS), related to his August 2007 work injury. Conversely, in February 2012, Employer filed a termination petition alleging that as of December 2011, Claimant recovered from his work injury.

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C. Claimant's Testimony Claimant testified that in August 2007 he injured his back at work while trying to break loose a hose from a piece of heavy equipment. He felt a pop in his upper back. Shortly thereafter, Claimant's entire back became symptomatic. Since then, Claimant continues to regularly suffer from upper, mid and lower back pain, headaches, and pain throughout his lower extremities. Overall, Claimant feels his condition continues to worsen.

Claimant's primary treating physicians specialize in family practice and sports medicine. Their treatment modalities temporarily reduce the severity of Claimant's pain, but do not eliminate it. Although Claimant is able to participate in some basic daily living activities, his wife does most of the household chores. In addition, Claimant cannot engage in the same activities with his children that he did before his injury. In January 2011, Claimant began treating with a registered psychiatric nurse.

Claimant also treated with Dr. Joseph Richards (Physiatrist), a physician board certified in physical medicine and rehabilitation. However, Physiatrist's cervical epidural steroid injections and facet blocks did not help Claimant.

In addition, Claimant testified he would like to try a special pain treatment with Dr. Robert Schwartzman, a pain specialist well known for treating RSD/CRPS. This risky treatment involves a five-day intravenous infusion of ketamine.

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D. Medical Evidence In support of his review petitions, Claimant submitted the deposition testimony of his primary treating physician, Dr. Robert Sing (Claimant's Physician). Based on his multiple examinations, Claimant's Physician testified as to the gradual deterioration of Claimant's condition. Claimant's Physician diagnosed Claimant's work-related condition as:

aggravation of an L5-S1 spondylolisthesis with a left L5 radiculopathy, exacerbation and aggravation of cervical and degenerative disc and joint disease with post traumatic cervical facet syndrome, cerviogenic headaches, post traumatic fibromyositis of the cervical, dorsal and lumbosacral spines, exacerbation and aggravation of thoracic spine spondylolisthesis, cervical and brachial plexus sensitization of the upper extremities with [RSD/CRPS], adjustment disorder with depression and anxiety features due to chronic pain and hypogonadism secondary to narcotic usage.

Dep. of Robert Sing (Sing. Dep.), 11/22/11, at 12; Reproduced Record (R.R.) at 313a.

Claimant's Physician and his partner, Dr. Christopher Davis (Partner Physician), treat Claimant once or twice per week. Sing Dep. at 7; R.R. at 308a. They provide Claimant with pain management through a combination of treatment modalities. Id. Their treatment includes manipulation therapy, percutaneous electrical nerve stimulation (PENS) and therapeutic exercises. Sing Dep. at 8; R.R. at 309a.

Claimant's Physician also diagnosed Claimant as suffering from RSD/CRPS. See Sing Dep. at 25-26; R.R. at 326a-27a. This prompted Claimant's

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Physician to refer Claimant to Dr. Schwartzman for possible ketamine infusion treatment. Id. Claimant's Physician also referred Claimant to Physiatrist, who treated Claimant with facet blocks and cervical epidural steroid injections.

In addition, Claimant's Physician testified Claimant began feeling anxious and depressed as a result of his chronic pain. Sing Dep. at 28; R.R. at 329a. He diagnosed Claimant's psychological condition as "adjustment disorder with anxiety and depression features secondary to chronic pain." Id. Consequently, in January 2011, Claimant's Physician referred Claimant to a registered psychiatric nurse, Renee Freilich, (Psychiatric Nurse) for treatment. Id.

Psychiatric Nurse testified she is a board certified psychiatric clinical nurse specialist. Based on her January 2011 examination of Claimant, Psychiatric Nurse diagnosed Claimant as suffering from adjustment reaction with depression and anxiety. Dep. of Renee Freilich (Freilich Dep.), 5/13/11, at 14; R.R. at 239a. Psychiatric Nurse directly related Claimant's psychiatric diagnosis to his 2007 work injury. Freilich Dep. at 16-17; R.R. at 241a-42a.

In support of its termination petition, Employer submitted deposition testimony from Dr. Nathan Schwartz (IME Physician), a physician board certified in anesthesiology and pain management. IME Physician examined Claimant in December 2011. Based on his examination and a review of Claimant's medical records, IME Physician opined Claimant fully recovered from his August 2007 work injury. Dep. of Nathan Schwartz (Schwartz Dep.), 2/21/11, at 30-31; R.R. at

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