        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

YMCA of Wilkes-Barre and HM              :
Casualty Insurance Company,              :
                       Petitioners       :
                                         :   No. 1072 C.D. 2017
            v.                           :   Submitted: January 19, 2018
                                         :
Workers’ Compensation Appeal             :
Board (Kempka),                          :
                      Respondent         :

BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                         FILED: March 5, 2018

            The YMCA of Wilkes-Barre and HM Casualty Insurance Company
(collectively, Employer) petition for review from an order of the Workers’
Compensation Appeal Board (Board) that reversed the decision of a Workers’
Compensation Judge (WCJ), thereby granting benefits. The WCJ denied a review
petition filed by Anthony Kempka (Claimant) from a Utilization Review (UR)
determination relating to acupuncture treatments and prescription medication. Upon
review, we affirm the Board’s order granting benefits.


                                  I. Background
            Claimant sustained a work injury in 2011, in the form of a C5-6 disc
herniation with radiculopathy and insertional tendonitis. WCJ’s Op., 7/1/16, Finding
of Fact (F.F.) No. 2.    Claimant’s treating physician, Emmanuel Jacob, M.D.
(Claimant’s Physician), who is board certified in physical medicine and
rehabilitation and is a licensed acupuncturist, provided ongoing medical treatment,
including acupuncture and a prescription muscle relaxer, Flexeril. F.F. Nos. 3, 9.


             In 2015, Employer requested a UR of treatment provided by Claimant’s
Physician. Tony Ton-That, M.D. (UR Physician), who is board-certified in physical
medicine and rehabilitation and is a physician acupuncturist, issued the UR
Determination. Certified Record (C.R.), Item #17. UR Physician determined
Flexeril was no longer reasonable or necessary in the event Claimant was not
receiving ongoing documented benefit from it. F.F. No. 3. Thus, UR Physician’s
determination left open the issue of whether Claimant was receiving ongoing benefit
from Flexeril. However, Claimant stopped taking Flexeril because of side effects
that made him “dopey or spacey.” F.F. No. 7. Therefore, ongoing treatment with
Flexeril is not at issue before this Court.


             UR Physician further determined that ongoing acupuncture treatment
was not reasonable or necessary because it was not providing Claimant with
significant, long-lasting pain relief. F.F. No. 3. Claimant petitioned for review of
that aspect of the UR Determination.


             On review, Claimant testified live before the WCJ. Claimant stated that
his weekly acupuncture treatments helped with his pain for a day or two, after which
the pain slowly returned. F.F. No. 7. Claimant testified that, although it did not
eliminate all his pain, the acupuncture treatment helped keep his overall level of pain
at bay. WCJ’s Hr’g, Notes of Testimony (N.T.), 12/22/15, at 11-15.




                                              2
             Claimant’s Physician, who testified by deposition, stated that the
acupuncture treatments consistently reduced Claimant’s pain, with relief lasting two
to three days. F.F. No. 9. Claimant’s Physician also explained that Claimant was
taking opioid pain medications before he began treating with Claimant’s Physician,
but with the acupuncture treatments, Claimant was able to avoid taking opioids. Id.


             Employer presented deposition testimony from Robert Mauthe, M.D.
(Employer’s Physician), who is board-certified in physical medicine and
rehabilitation. F.F. No. 8. Employer’s Physician opined that continued acupuncture
treatments were not reasonable and necessary because they did not improve
Claimant’s condition and only provided relief for a day or two. Id.


             The WCJ did not reject the testimony of any witness as not credible.
However, he found UR Physician and Employer’s Physician “most persuasive.”
F.F. No. 10. He concluded that continued acupuncture treatment was not reasonable
and necessary because it was not improving Claimant’s condition and the pain relief
lasted only a day or two at a time. Id.


             Claimant appealed to the Board, which reversed the WCJ’s decision.
The Board observed that palliative treatment may be reasonable and necessary, even
if it does not cure the underlying injury, as long as it alleviates pain and treats
symptoms. Bd. Op., 7/7/17, at 2-3 (citing Trafalgar House v. Workers’ Comp.
Appeal Bd. (Green), 784 A.2d 232 (Pa. Cmwlth. 2001), appeal denied, 800 A.2d 935
(Pa. 2002); Cruz v. Workers’ Comp. Appeal Bd. (Phila. Club), 728 A.2d 413 (Pa.
Cmwlth. 1999)). The Board did not disturb the WCJ’s findings on credibility or



                                          3
persuasiveness. Bd. Op. at 5-6. However, the Board determined the WCJ failed to
consider Claimant’s testimony regarding his pain relief, in that the acupuncture
provided a day or two of pain relief and helped keep the overall level of pain at bay.
Id. at 6.    Citing Cruz, the Board concluded acupuncture was reasonable and
necessary, even though it was aimed at managing Claimant’s pain symptoms rather
than improving or curing his condition. Id. at 6-7.


              Employer then filed a timely petition for review to this Court.


                                          II. Issues
              On appeal,1 Employer argues the Board improperly reweighed the
evidence and the WCJ’s credibility determinations. Employer also contends the
Board exceeded the scope of Claimant’s appeal, in that the only issue Claimant
preserved was whether the WCJ failed to issue a reasoned decision. Employer
asserts the Board should have found the WCJ issued a reasoned decision, and it
should have affirmed the WCJ on that basis.


                                       III. Discussion
                         A. Claimant’s Preservation of Issues
              As a preliminary matter, we observe that Claimant raised all his
appellate issues in his notice of appeal to the Board. C.R., Item #5. However,
Employer asserts Claimant failed to brief before the Board any issue other than


       1
         Our review of the Board’s decision is limited to determining whether an error of law was
committed, whether necessary findings of fact were supported by substantial evidence, and
whether constitutional rights were violated. Dep’t of Transp. v. Workers’ Comp. Appeal Bd.
(Clippinger), 38 A.3d 1037 (Pa. Cmwlth. 2011).


                                               4
whether the WCJ issued a reasoned decision.                Therefore, Employer contends
Claimant failed to preserve any other issues for review by this Court. We must reject
this argument. The parties’ briefs before the Board are not part of the certified record
in this appeal. Accordingly, we will not consider Employer’s waiver argument.


           B. Reasonableness and Necessity of Acupuncture Treatments
               An employer who disputes the reasonableness and necessity of a
claimant’s medical treatment may submit the bills for a UR pursuant to Section
306(f.1)(6) of the Workers’ Compensation Act.2 Bedford Somerset MHMR v.
Workers’ Comp. Appeal Bd. (Turner), 51 A.3d 267 (Pa. Cmwlth. 2012). The
claimant bears no burden of proof in the UR process. Id. Rather, the employer bears
a never-shifting burden throughout the entire UR proceeding to show the disputed
treatment is not reasonable and necessary. Id.


               Under Pennsylvania law, treatment may be reasonable and necessary
even if it is purely aimed at pain management and does not cure or permanently
improve the claimant’s underlying condition. Trafalgar. Thus, a WCJ may not
determine treatment to be unreasonable and unnecessary solely because the
treatment is palliative in nature. Id.


               Trafalgar and similar legal precedents support the reasonableness and
necessity of treatments providing pain management benefits like those at issue here.
In Trafalgar, this Court held that palliative treatments were reasonable and necessary
under Pennsylvania law, even though the relief lasted only a couple of days after

      2
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §531(6).



                                               5
each treatment.      In Glick v. Workers’ Compensation Appeal Board (Concord
Beverage Co.), 750 A.2d 919 (Pa. Cmwlth. 2000), this Court held a UR reviewer’s
determination that pain relief was not lasting could not overcome the provider’s
testimony that the treatment was necessary to alleviate the claimant’s pain
symptoms. In Pennsylvania Turnpike Commission v. Workers’ Compensation
Appeal Board (Collins), 709 A.2d 460 (Pa. Cmwlth. 1998), this Court concluded
non-acupuncture dry-needle treatment was reasonable and necessary where it
reduced the claimant’s pain and improved function. In Philadelphia Newspapers,
Inc. v. Workers’ Compensation Appeal Board (Badame) (Pa. Cmwlth., No. 2273
C.D. 2007, filed July 10, 2008), 2008 Pa. Commw. Unpub. LEXIS 330 (unreported),
this Court affirmed the Board’s determination that palliative treatment was
reasonable and necessary where the claimant credibly testified it gave him a little
pain relief.3


                Significantly, the temporary pain treatments at issue in these decisions
were reasonable and necessary even without any additional benefits, such as
allowing the claimants to avoid or cease using prescription narcotics.            Here,
Claimant’s Physician offered undisputed testimony that Claimant took opioid pain
medications before he began treating with Claimant’s Physician, and that the pain
relief provided by the acupuncture treatments allowed Claimant to avoid continuing
to take opioids.




       3
         We cite Philadelphia Newspapers, Inc. v. Workers’ Compensation Appeal Board
(Badame) (Pa. Cmwlth., No. 2273 C.D. 2007, filed July 10, 2008), 2008 Pa. Commw. Unpub.
LEXIS 330 (unreported) as persuasive authority. See 210 Pa. Code §69.414(a).


                                            6
             This Court previously observed that opioids pose a greater risk than
other treatments, and consideration of that risk is appropriate in assessing whether a
pain treatment at issue is reasonable and necessary. Bedford Somerset MHMR.
Further, in Samuels v. Workers’ Compensation Appeal Board (PeopleShare) (Pa.
Cmwlth., No. 848 C.D. 2014, filed January 6, 2015), 2015 Pa. Commw. Unpub.
LEXIS 20 (unreported), appeal denied, 117 A.3d 1282 (Pa. 2015), this Court implied
that a temporary reduction in pain would justify ongoing treatment, and reduction in
use of opiates would justify ongoing use of an alternate treatment.


             Moreover, the decisions cited by Employer are distinguishable. In
Jackson v. Workers’ Compensation Appeal Board (Boeing), 825 A.2d 766 (Pa.
Cmwlth. 2003), the UR reviewer determined continued chiropractic care was not
reasonable or necessary because it was a disservice rather than a service for a soft
tissue injury such as the claimant suffered, and because a home exercise program
would be more beneficial. Here, there was no evidence of either circumstance.


             In Howrie v. Workers’ Compensation Appeal Board (CMC Equipment
Rental), 879 A.2d 820 (Pa Cmwlth. 2005), the treatment at issue was not reasonable
and necessary because the WCJ found the claimant not credible in testifying that the
treatment provided pain relief. Here, by contrast, there was no dispute that the
acupuncture treatments reduced Claimant’s pain for at least one to two days each
week, and helped keep his overall level of pain at bay.


             Contrary to Employer’s argument, the Board did not reweigh the facts
in reversing the WCJ. Rather, the Board applied the appropriate legal standard to



                                          7
the undisputed facts. Based on those facts, the Board correctly determined that
applicable law supports the reasonableness and necessity of the acupuncture
treatments at issue. Accordingly, this Court concludes the Board properly reversed
the WCJ’s decision.


                                 IV. Conclusion
            Based on the foregoing discussion, this Court affirms the order of the
Board granting benefits.




                                     ROBERT SIMPSON, Judge




                                        8
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

YMCA of Wilkes-Barre and HM           :
Casualty Insurance Company,           :
                       Petitioners    :
                                      :   No. 1072 C.D. 2017
            v.                        :
                                      :
Workers’ Compensation Appeal          :
Board (Kempka),                       :
                      Respondent      :



                                 ORDER

            AND NOW, this 5th day of March, 2018, the order of the Workers’
Compensation Appeal Board is AFFIRMED.




                                     ROBERT SIMPSON, Judge
