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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Delaware County, Petitioner v. Workers' Compensation Appeal Board (Browne), Respondent : : : : : : : :

No. 788 C.D. 2008 Submitted: August 8, 2008

BEFORE:

HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES R. KELLEY, Senior Judge

OPINION BY SENIOR JUDGE KELLEY

FILED: December 22, 2008

Delaware County (Employer) petitions for review of an order of the Workers' Compensation Appeal Board (Board) which reverses the Workers' Compensation Judge's (WCJ) decision granting Employer's termination petition. We affirm in part, vacate in part and remand. Mayetta Browne suffered work-related injuries on February 11, 2002, when she was involved in an automobile accident. Employer issued a notice of temporary compensation payable which was later converted to a notice of compensation payable (NCP). Claimant's injuries were described in the NCP as a low back strain and a strain to the right side of the neck. By decision and order circulated on April 13, 2004, WCJ Stokes amended Claimant's injury description to include a cervical disc herniation, cervical radiculopathy, and bilateral carpal tunnel syndrome. WCJ Stokes also denied Employer's termination petition after

determining that Employer failed to establish that it was entitled to a termination of benefits as of March 13, 2003. On June 6, 2005, Employer filed a second termination petition alleging that Claimant had fully recovered from her work-related injuries as of October 14, 2004. On September 26, 2005, Claimant filed a review petition alleging that Employer had refused to pay for recommended Botox injections and Zonalon cream which were related to her work injuries. On May 30, 2006, Employer filed utilization review request requesting a prospective review of the Botox injection and Zonalon cream treatment recommended by the provider. On August 25, 2006, a utilization review determination was issued wherein the provider's recommended treatment was found to be unreasonable and unnecessary. On September 8, 2006, Claimant filed a utilization review petition seeking review of the prospective treatment at issue. Hearings before WCJ DiLorenzo ensued. In support of the

termination petition, Employer presented the deposition testimony of I. Howard Levin, M.D., and a surveillance videotape. In opposition to the termination

petition and in support of her petitions, Claimant testified on her own behalf and presented the deposition testimony of Dennis W. Ivill, M.D. Based on the

evidence presented, WCJ DiLorenzo concluded that Employer established its right to a termination of Claimant's benefits as of October 14, 2004. WCJ DiLorenzo further found that Claimant failed to establish that the Botox injections and Zonalon cream recommended by the provider were reasonable and necessary. Accordingly, WCJ DiLorenzo granted Employer's termination petition and denied Claimant's review petition. Claimant appealed WCJ DiLorenzo's decision to the Board. Upon review, the Board affirmed in part and reversed in part. The Board affirmed WCJ 2.

DiLorenzo's decision denying Claimant's review petition1 but reversed her decision granting Employer's termination petition. The Board determined based on our Supreme Court's decision in Lewis v. Workers' Compensation Appeal Board (Giles & Ransome, Inc.), 591 Pa. 490, 919 A.2d 922 (2007), that Employer failed to establish that Claimant's physical condition had changed since WCJ Stokes' April 13, 2004 decision; therefore, the WCJ erred by granting Employer's termination petition. The Board pointed out that it is now clear under Lewis, that an employer's burden of proof in a subsequent termination petition proceeding is to present medical evidence to establish an actual change in the claimant's physical condition since the last termination proceeding. The Board reasoned that the decision in Lewis did not simply allow a change in condition to be satisfied by a medical opinion of full recovery but instead required proof that the claimant's condition was different since the time of the last disability adjudication. The Board determined that WCJ DiLorenzo's findings in this matter fell short of the standard required by Lewis. Specifically, the Board stated as follows: [WCJ DiLorenzo's] finding that Claimant's hands were better since surgery in 2002, and physical therapy on an unspecified date before October 14, 2004 did not establish the requisite change in condition since the last disability adjudication in 2004. Indeed a later finding discusses the absence of numbness and tingling in Claimant's upper extremities at the time of examinations in 2003, and early 2004. The same defect underlies
The Board rejected Claimant's argument that WCJ DiLorenzo erred in failing to separately address the utilization review petition. The Board determined that since the issue presented in the utilization review petition was the same as that presented in the review petition, that being whether the provider's recommended Botox injections and Zonalon cream treatment was reasonable and necessary, and WCJ DiLorenzo addressed this issue, she was not required to separately address the utilization review petition.
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3.

[WCJ DiLorenzo's] findings that Claimant did not have any evidence of cervical radiculopathy when examined by Dr. Levin. To this end, [WCJ DiLorenzo] discusses examination findings preceding WCJ Stokes' [April 13,] 2004 decision. As to the findings of cervical disc herniations, [WCJ DiLorenzo] found Claimant had long standing degenerative disease and changes, thereby disregarding the cervical herniation finding of WCJ Stokes. Even assuming that [WCJ DiLorenzo] could circumstantially find a change in condition regarding the carpel tunnel syndrome and radiculopathy based on Dr. Levin's October 14, 2004 examination of Claimant, her finding disregarding the prior adjudication finding of a disc herniation, unquestionably is no longer permitted by Lewis. Therefore, we are constrained to reverse [WCJ DiLorenzo's] grant of [Employer's] Termination Petition based on Lewis. Board Opinion at 8-9. This appeal by Employer followed.2 Herein, Employer raises the following issues: whether WCJ DiLorenzo's decision granting Employer's termination petition is supported by substantial competent evidence; and whether the Board erred in substituting their own fact finding, not considering the deposition testimony of Dr. Levin as a whole, and in its interpretation of the applicable case law. In support of its appeal, Employer argues that there is no doubt that WCJ DiLorenzo's decision is supported by substantial evidence as it is based on the entire credible testimony of Dr. Levin that Claimant is fully recovered from her work-related injuries as of October 14, 2004. Employer argues further that the Board's determination that the Supreme Court's decision in Lewis does not allow a
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Claimant did not appeal the denial of her review petition.

4.

change in condition to be satisfied by a medical opinion of full recovery is both internally inconsistent and a mischaracterization of the holding in Lewis. This determination also contradicts the Workers' Compensation Act3 (Act) which clearly states that the burden in a termination proceeding is satisfied by a medical opinion of full recovery. Employer contends that contrary to the Board's interpretation, Lewis did not change the burden of proof in a termination proceeding, it merely clarified it to make the case law consistent with the Act. We begin with a review of our Supreme Court's decision in Lewis wherein the claimant suffered work-related injuries when the forklift he was operating fell off the back of a truck. The claimant began receiving workers'

compensation benefits pursuant to a notice of compensation payable. Thereafter, the employer filed its first termination petition alleging full recovery on April 23, 1990. By decision of July 12, 1993, the WCJ denied the termination, finding that the claimant suffered from a C8-T1 radiculopathy and that he had an underlying congenital syrinx and an Arnold-Chiari formation that had been aggravated by the work injury. The employer filed a second termination alleging full recovery on January 4, 1994. By decision of August 28, 1997, the WCJ denied the second petition, finding that in addition to the previously recognized disorders, the claimant was also suffering from an L5-S1 radiculopathy that was related to the work injury. The employer filed a third termination alleging full recovery on April 19, 1999, and the claimant filed a petition to review the notice of compensation payable wherein the claimant sought a determination that his left knee injury was
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Act of June 2, 1915, P.L. 736, as amended, 77 P.S.

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