          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Constantine Mitoulis,               :
                                    :
                         Petitioner :
                                    :
                  v.                : No. 991 C.D. 2018
                                    : Argued: June 5, 2019
Workers’ Compensation Appeal        :
Board (Sunrise Senior Living        :
Management, Inc.),                  :
                                    :
                         Respondent :



BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                            FILED: April 27, 2020


              Constantine Mitoulis (Claimant) petitions for review of the June 20,
2018 order of the Workers’ Compensation Appeal Board (Board), which affirmed
the order of a workers’ compensation judge (WCJ) granting, in part, the
termination petition filed by Sunrise Senior Living Management, Inc. (Employer).
On appeal, Claimant argues that an order granting partial termination is contrary to
well-settled law. For the following reasons, we reverse in part and affirm in part.
              Claimant suffered a work injury on September 24, 2010, in the nature
of a low back and buttocks sprain and adjustment disorder with anxiety and
depressive features. WCJ’s Finding of Fact No. 1. On November 15, 2013, the
parties executed a Compromise and Release Agreement (C&R), settling the
indemnity portion of the claim and providing that Employer remained liable for
medical expenses causally related to the accepted physical and psychological
injuries. Reproduced Record (R.R.) at 12a-24a.
              On June 20, 2016, Employer filed a termination petition alleging that
Claimant had fully recovered from his work injuries. R.R. at 25a-28a. Claimant
filed an answer denying those allegations and requesting reasonable contest
attorney’s fees in accordance with Section 440 of the Workers’ Compensation Act
(Act).1 The matter was assigned to a WCJ for hearings.
              In support of its petition, Employer presented the deposition testimony
of Robert Cohn, M.D., who is board certified in psychiatry and neurology. Based
on his May 23, 2016 examination of Claimant and his review of Claimant’s
medical records, Dr. Cohn opined that Claimant had fully recovered from his
psychiatric injury of adjustment disorder with mixed anxiety and depression. Dr.
Cohn found that Claimant continued to struggle with anxiety. However, Dr. Cohn
believed that Claimant’s anxiety stemmed from severe obsessive-compulsive
disorder (OCD), which predated and was unrelated to the work injury.
              Claimant presented the deposition testimony of his treating
psychologist, Brian Raditz, Ed.D.          Dr. Raditz has been treating Claimant for
chronic pain, as well as for obsessive-compulsive behavior and depression. Dr.

       1
        Act of June 2, 1915, P.L. 736, as amended, added by section 3 of the Act of February 8,
1972, 77 P.S. §996.


                                              2
Raditz testified that Claimant’s depression, anxiety, and medical condition had not
changed during the two years he has been seeing Claimant. He disagreed with Dr.
Cohn’s opinion that Claimant had recovered from his adjustment disorder with
depression and anxiety, and he believed that Claimant’s OCD was causally related
to the work injury.
             Claimant testified that he was injured on September 24, 2010, when
he slipped and fell while getting out of a bus. He denied having any treatment,
medications, or symptoms of anxiety or depression prior to the work injury.
According to Claimant, he began noticing those symptoms three to four weeks
later. Claimant stated that while he was unable to get out of bed due to the work
injury, he developed rituals, such as making lists. He explained that he repeatedly
checked to be sure he had certain items with him, and he constantly checked the
stove, faucets, door, and telephones.    Claimant testified that he continued to
experience anxiety and depression and saw Dr. Raditz biweekly to address those
symptoms as well as his compulsive behavior.
             Citing Claimant’s demeanor and his medical records, the WCJ
rejected Claimant’s testimony as not credible.      The WCJ found Dr. Cohn’s
testimony more credible and persuasive than the testimony of Dr. Raditz and
accepted Dr. Cohn’s opinion that Claimant had recovered from his adjustment
disorder with anxiety and depressive features.      However, the WCJ rejected
Employer’s assertion that Claimant was recovered from his low back and buttocks
sprain as unsupported by any evidence.
             Based on these findings, the WCJ concluded that Employer proved
Claimant had fully recovered from his psychological injuries but remained liable




                                         3
for medical treatment for the recognized physical injury. By order dated June 12,
2017, the WCJ granted Employer’s termination petition “in part.” R.R. at 35a.
                Claimant appealed to the Board, arguing that termination is properly
granted only where an employer establishes that the claimant fully recovered from
all recognized work injuries.            The Board rejected Claimant’s argument and
affirmed the WCJ’s decision.
                On appeal to this Court,2 Claimant does not challenge the WCJ’s
findings or conclusions, including the WCJ’s determination that he fully recovered
from the accepted psychological conditions. However, Claimant argues that the
WCJ committed an error of law in ordering a partial termination of benefits.
Claimant maintains that this award disregards long-standing precedent, which
holds that a termination of benefits is appropriate only where the employer proves
that a claimant is fully recovered from all recognized work injuries. Claimant
asserts that departing from this body of law will force claimants to defend against
multiple termination petitions on a piecemeal basis. Claimant also contends that
Employer should have pursued relief by way of utilization review (UR), which
addresses the reasonableness and necessity of medical treatment.3

      2
          Our scope of review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Milner v. Workers’ Compensation Appeal Board (Main Line
Endoscopy Center), 995 A.2d 492, 495 n.2 (Pa. Cmwlth. 2010).

      3
          Section 306(f.1) of the Act, 77 P.S. §531. In relevant part, Section 306(f.1) provides:

                (5) The employer or insurer shall make payment and providers
                shall submit bills and records in accordance with the provisions of
                this section. All payments to providers for treatment provided
                pursuant to this act shall be made within thirty (30) days of receipt
                of such bills and records unless the employer or insurer disputes
(Footnote continued on next page…)
                                                 4
             In response, Employer asserts that under the facts of this case, where
liability for wage loss was settled by way of a C&R and Claimant’s recognized
work injuries are entirely distinct, a “partial termination” award was proper.
Employer argues that it should not remain responsible for Claimant’s mental health
treatment where that discrete injury has resolved. Employer also asserts that while
UR addresses the reasonableness and necessity of treatment, the issue here was not
a challenge to specific treatment.
             We take this opportunity to correct the misconceptions evident in the
decisions below.     It is by now well-settled law that a termination petition is
properly granted upon proof that all disability has ceased. Lewis v. Workers’
Compensation Appeal Board (Giles & Ransome, Inc.), 919 A.2d 922, 926 (Pa.
2007); Daniels v. Workers’ Compensation Appeal Board (Tristate Transport), 753
A.2d 293, 297 (Pa. Cmwlth. 2000). We discern no basis in our case law for a

(continued…)

             the reasonableness or necessity of the treatment provided pursuant
             to paragraph (6). The nonpayment to providers within thirty (30)
             days for treatment for which a bill and records have been
             submitted shall only apply to that particular treatment or portion
             thereof in dispute; payment must be made timely for any treatment
             or portion thereof not in dispute. . . .
             (6) Except in those cases in which a workers’ compensation judge
             asks for an opinion from peer review under [S]ection 420, disputes
             as to reasonableness or necessity of treatment by a health care
             provider shall be resolved in accordance with the following
             provisions:
                     (i) The reasonableness or necessity of all treatment
             provided by a health care provider under this act may be subject to
             prospective, concurrent or retrospective utilization review at the
             request of an employe, employer or insurer. The department shall
             authorize utilization review organizations to perform utilization
             review under this act.


                                             5
“partial termination of benefits.”            Importantly, however, and contrary to
Employer’s concerns, a WCJ’s finding of full recovery from a discrete injury is
binding in future proceedings and is sufficient to relieve Employer of liability for
related medical expenses. Mino v. Workers’ Compensation Appeal Board (Crime
Prevention Association), 990 A.2d 832, 839 (Pa. Cmwlth. 2010).
              In County of Allegheny v. Workers’ Compensation Appeal Board
(Nicini) (Pa. Cmwlth., No. 2602 C.D. 2015, filed February 3, 2017),4 we explained:

              [A]n employer “must prove that all of the claimant’s
              work-related disability has ceased” in order to be entitled
              to a termination of medical and wage loss benefits related
              to the work injury. Central Park Lodge v. Workers’
              Compensation Appeal Board (Robinson), 718 A.2d 368,
              370 (Pa. Cmwlth. 1998) (emphasis in original) (citations
              omitted). Pennsylvania courts have repeatedly held that
              in a termination proceeding, an employer bears the
              burden of proving by substantial evidence that a
              claimant’s disability has ceased, “or that any remaining
              conditions are unrelated to the work injury. An employer
              may satisfy this burden by presenting unequivocal and
              competent medical evidence of the claimant’s full
              recovery from her work-related injuries.” Westmoreland
              County v. Workers’ Compensation Appeal Board
              (Fuller), 942 A.2d 213, 217 (Pa. Cmwlth. 2007)
              (emphasis added) (citation omitted).

              The Board interpreted the decision in Indian Creek
              Supply v. Workers’ Compensation Appeal Board
              (Anderson), 729 A.2d 157 (Pa. Cmwlth. 1999), as
              inviting a departure from our case law. In that case we
              held that the employer satisfied its burden with respect to
              the claimant’s lumbosacral strain but not the residual
              problems from his disc herniation. We find no support

       4
         Section 414 of this Court’s Internal Operating Procedures authorizes the citation of
unreported panel decisions issued after January 15, 2008, for their persuasive value, but not as
binding precedent. 210 Pa. Code §69.414.


                                               6
             for the Board’s analysis in Indian Creek Supply. More
             important, we believe that the Board is fashioning a
             “cure” for a problem that does not exist: it is by now
             well settled that a finding of fact that is not challenged
             on appeal is binding on the parties in subsequent
             proceedings. Mino v. Workers’ Compensation Appeal
             Board (Crime Prevention Association), 990 A.2d 832,
             839 (Pa. Cmwlth. 2010); Temple University Hospital v.
             Workers’ Compensation Appeal Board (Sinnot), 866
             A.2d 489, 494 n.4 (Pa. Cmwlth. 2005). Here, the WCJ’s
             unchallenged finding that [the claimant] was fully
             recovered from the hand injury is sufficient, in itself, to
             entitle [the employer] to the relief the Board seeks to
             supply. We conclude that the Board’s piecemeal
             approach is both unnecessary and ill-advised, and we
             direct the Board’s attention to our decision in Ingram
             Micro v. Workers’ Compensation Appeal Board (Heim)
             (Pa. Cmwlth., No. 1716 C.D. 2013, filed May 23, 2014)
             (holding that termination of benefits in part was
             improper).
County of Allegheny, slip op. at 4-5 n.6 (bold emphasis added).
              Consistent with our previous decisions, the WCJ’s finding that
Claimant was fully recovered from the psychological injury was sufficient, alone,
to relieve Employer of the obligation to pay for treatment related to that discrete
injury. Mino, 990 A.2d at 839; Temple University Hospital, 866 A.2d at 494 n.4.
Further, although the separate physical and psychological injuries were causally
related to the same event, Claimant does not assert any causal relationship between
his physical injury and his psychological injury.        Consequently, Employer’s
contention that it will remain liable for Claimant’s mental health treatment unless a
“partial termination” is granted is unsupported. Mino, 990 A.2d at 839; Temple




                                         7
University Hospital, 866 A.2d at 494 n.4. The WCJ erred in granting a “partial
termination of benefits,” a remedy that is not recognized under Pennsylvania law.5
              However, while piecemeal litigation is strongly disfavored, under the
unique facts of this case, the WCJ’s error had no practical effect. On appeal,
Claimant does not challenge the WCJ’s determination that he fully recovered from
his psychological injury, and as a result, the Court can offer Claimant no
meaningful relief.
              Accordingly, we reverse the Board’s order insofar as it affirms the
WCJ’s “partial” termination of benefits, and we affirm the Board’s order in all
remaining respects.




                                            MICHAEL H. WOJCIK, Judge


Judge Fizzano Cannon did not participate in the decision of this case.




       5
         Employer could have sought a modification of its obligations by filing a review petition
under Section 413 of the Act, 77 P.S. §772. Furthermore, despite filing a termination petition,
Employer presented no evidence whatsoever related to Claimant’s physical injuries. We caution
employers that such conduct may subject them to unreasonable contest attorney fees. Section
440 of the Act, 77 P.S. §996.


                                               8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Constantine Mitoulis,               :
                                    :
                         Petitioner :
                                    :
                  v.                : No. 991 C.D. 2018
                                    :
Workers' Compensation Appeal        :
Board (Sunrise Senior Living        :
Management, Inc.),                  :
                                    :
                         Respondent :



                                 ORDER


            AND NOW, this 27th day of April, 2020, the order of the Workers’
Compensation Appeal Board, dated June 20, 2018, is AFFIRMED in part and
REVERSED in part in accordance with the foregoing opinion.




                                   __________________________________
                                   MICHAEL H. WOJCIK, Judge
