          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Lines,                           :
                    Petitioner        :
                                      :
              v.                      :   No. 1960 C.D. 2015
                                      :   Submitted: February 12, 2016
Workers’ Compensation Appeal          :
Board (Specialty Haulers, Inc./       :
AARLA),                               :
                  Respondent          :

BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                   FILED: June 8, 2016

              John Lines (Claimant) petitions for review of an adjudication of the
Workers’ Compensation Appeal Board (Board) denying Claimant’s penalty
petition for non-payment of his prescription medications. In doing so, the Board
affirmed the Workers’ Compensation Judge’s (WCJ) decision that Claimant did
not prove that the unpaid medications were for treatment of his work injury. We
affirm.
              On February 3, 1999, Claimant injured his back while working for
Specialty Haulers (Employer).      Employer issued a Notice of Compensation
Payable (NCP) describing the work injury as a bulging disc and small herniation at
the L5-S1 level and providing for payment of total disability benefits and medical
expenses. In 2008, the parties executed a Compromise and Release Agreement
ending Claimant’s receipt of disability benefits but retaining his right to ongoing
payment of medical expenses for his work injury.
                 In September 2013, Claimant filed a penalty petition alleging that
Employer violated the Workers’ Compensation Act1 (Act) by not paying for
Claimant’s prescription medications. Employer filed an answer denying that it
violated the Act.
                 In March 2014, Employer filed a petition to review medical treatment
and/or billing. Therein Employer alleged it had filed a utilization review request
on September 23, 2013, and that payment for the prescriptions should not be due or
owing until such time as the utilization review would be decided.
                 The petitions were consolidated and assigned to a WCJ who held a
hearing. Claimant’s counsel and Employer’s counsel requested subpoenas for
various witnesses. Claimant’s counsel did not appear at the hearing on the penalty
petition.      Employer’s counsel appeared and explained that there was some
confusion because Claimant was simultaneously litigating a different claim in front
of a different WCJ involving a different workers’ compensation insurance carrier.
Counsel stated:

                 [Claimant] has a second dual claim going on with the current
                 litigation in front of [a different WCJ].

                                               ***
                 He’s alleging injuries and taking medications and [his] Counsel
                 filed a Petition for Penalties alleging that we are not paying for
                 certain medications that he’s taking. So [the subpoenas are]
                 directly relevant to the care and treatment that he’s getting for
                 the other claim which is apparently substantial. It’s relevant to
                 this claim.

                                               ***


1
    Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.


                                                2
              No, I’m not a party of it; it’s a different insurance carrier[.]

Notes of Testimony (N.T.), May 28, 2014, at 6.2
              In support of his penalty petition, Claimant presented the deposition
testimony of Darren Thomas, director of reimbursement for the Injured Workers
Pharmacy, which specializes in filling prescriptions by mail for workers’
compensation claimants. On May 1, 2013, Injured Workers Pharmacy began
providing medications to Claimant as prescribed by his treating physician, Stephen
J. Masceri, M.D. It billed Employer for these medications using the appropriate
forms. The first prescription invoices were paid. However, beginning June 27,
2013, Employer refused payment. Thomas understood that Gallagher Bassett,
which was handling the claim at the time, recommended payment on the invoice
for the June 27, 2013, shipment of medications but for unknown reasons no check
was issued. Injured Workers Pharmacy did receive payment for a July 1, 2013, bill
for the medication Alprazolam.3 Several subsequent invoices were not paid.
              In August 2013, Seabright Insurance advised Injured Workers
Pharmacy that it was now handling the claim. Thomas called Seabright and was
told that the medication invoices were denied because the claim was “in litigation.”
Reproduced Record at 112a (R.R. ___); N.T., July 28, 2014, at 8. Despite the
denials, Injured Workers Pharmacy continued to dispense Alprazolam and other
unnamed medications prescribed by Dr. Masceri. The unpaid balance for the
medications at the time of Thomas’s deposition was $46,504.69.

2
  Claimant’s reproduced record does not include the hearing transcripts. Therefore, we cite to
the certified record.
3
  Alprazolam is a “benzodiazepine minor tranquilizer used for management of anxiety disorders
and panic attack.” STEDMAN’S MEDICAL DICTIONARY at 51 (27th ed. 2000).


                                              3
                 Claimant also presented the deposition testimony of Matthew Gonder,
who analyzes claim files for Seabright to ensure that they are properly reserved.4
Gonder confirmed that Seabright took over Claimant’s file from Gallagher Bassett
in August 2013. It was a 15-year-old medical only claim because the disability
benefits had been settled. Gonder was aware that Seabright was required to pay for
reasonable and necessary medical care for Claimant’s February 1999 work injury,
i.e., a disc herniation at L5, a fusion at L4-5 and L5-S1, chronic low back pain and
neurogenic bladder. Claimant’s file contained prescription drug orders from Dr.
Masceri but no office visit information.                     Because there were numerous
prescriptions for Claimant, Gonder turned the file over for an in-house medical bill
review.        However, Gonder subsequently realized that because this was a
Pennsylvania case, he needed to file a utilization review request for review of Dr.
Masceri’s prescriptions with the Bureau of Workers’ Compensation; he did so on
September 23, 2013.5 Gonder testified that he filed the utilization review based on
an August 26, 2013, bill from Injured Workers Pharmacy. Gonder had not yet
received a response from the Bureau at the time of his deposition in June 2014.
                 Claimant submitted four office notes from Dr. Masceri. The first,
dated January 9, 2013, documented complaints of pain in Claimant’s back and both
legs and a “follow up” physical examination. R.R. 130a. Dr. Masceri diagnosed
persistent lumbar pain with radiculopathy and prescribed Percocet and Motrin for
pain relief. An office note dated February 4, 2013, stated that Dr. Masceri saw



4
    Seabright is now a subsidiary of Enstar Group Limited.
5
    Gonder initially believed this was a New Jersey case because Claimant lives in that state.


                                                   4
Claimant and gave him prescriptions for Percocet and Xanax.6 An office note
dated April 1, 2013, stated that Dr. Masceri again saw Claimant.                   Claimant
complained of back and leg pain and had recently undergone a total right knee
replacement. Dr. Masceri prescribed Percocet for pain and Restoril for sleep.
Finally, an office note dated May 1, 2013, stated that Dr. Masceri again saw
Claimant and gave him refills of Percocet, Motrin, Xanax and Restoril.7
              The WCJ accepted the testimony of Thomas and Gonder as credible.8
However, the WCJ found that neither their testimony nor Dr. Masceri’s office
notes provided the date of injury for which medication was being prescribed.
Further, Dr. Masceri’s office notes referred to Claimant’s persistent lumbar pain
with radiculopathy but did not state that this was associated with the 1999 work
injury. The WCJ also noted that various exhibits that were referenced in the
deposition testimony were not attached to the deposition transcripts. The WCJ
concluded that because it was not apparent whether the unpaid medications were
prescribed for the February 3, 1999, work injury, Claimant failed to meet his
burden of proving that Employer had violated the Act. Accordingly, the WCJ




6
  Xanax is the brand name for Alprazolam. See http://www.everydayhealth.com/drugs/xanax.
7
  Claimant did not testify.
8
  The WCJ has complete authority over questions of credibility and evidentiary weight. Sherrod
v. Workmen’s Compensation Appeal Board (Thoroughgood, Inc.), 666 A.2d 383, 385 (Pa.
Cmwlth. 1995).


                                              5
denied the penalty petition.9 Claimant appealed, and the Board affirmed. Claimant
then petitioned for this Court’s review.10
              On appeal, Claimant raises three issues for our consideration.11 First,
he argues that his penalty petition should have been granted because Employer
violated the Act by failing to reimburse Injured Workers Pharmacy for the
medications prescribed by Dr. Masceri. Second, he asserts that the matter should
be remanded with instructions for the parties to supply the missing exhibits
referenced by the WCJ. Third, Claimant argues that Employer did not properly file
its September 23, 2013, utilization review request and, therefore, had no legal basis
for denying payment of Claimant’s prescription medications. We address these
issues seriatim.
              Section 435(d) of the Act, 77 P.S. §991(d), provides that penalties
may be assessed against an employer that violates the Act or its regulations.12 To

9
  The WCJ also denied Employer’s petition to review medical treatment and/or billing because
no evidence was presented on that petition. Employer did not appeal and, therefore, this petition
is not currently at issue.
10
   This Court’s review of an order of the Board is to determine whether the necessary findings of
fact are supported by substantial evidence, whether Board procedures were violated, whether
constitutional rights were violated or whether an error of law was committed. Boddie v.
Workers’ Compensation Appeal Board (Crown Distribution Center), 125 A.3d 84, 89 n.4 (Pa.
Cmwlth. 2015).
11
   We have rearranged the order of Claimant’s issues for organizational purposes.
12
   Section 435 was added by the Act of February 8, 1972, P.L. 25. Section 435(d) states, in
relevant part, as follows:
       (d) The department, the board, or any court which may hear any proceedings
       brought under this act shall have the power to impose penalties as provided herein
       for violations of the provisions of this act or such rules and regulations or rules of
       procedure:
               (i) Employers and insurers may be penalized a sum not exceeding
               ten per centum of the amount awarded and interest accrued and
(Footnote continued on the next page . . .)
                                                 6
impose penalties, a violation of the Act or regulations “must appear on the record.”
Farance v. Workers’ Compensation Appeal Board (Marino Brothers, Inc.), 774
A.2d 785, 789 (Pa. Cmwlth. 2001).                  The claimant has the initial burden of
presenting evidence to prove a violation of the Act.                   Shuster v. Workers’
Compensation Appeal Board (Pennsylvania Human Relations Commission), 745
A.2d 1282, 1288 (Pa. Cmwlth. 2000). If the claimant fails to produce evidence,
the penalty petition will be denied. Sanders v. Workers’ Compensation Appeal
Board (Marriott Corporation), 756 A.2d 129, 132-33 (Pa. Cmwlth. 2000).
                The Act requires an employer to pay for reasonable and necessary
medical expenses that are causally related to the work injury.                      Listino v.
Workmen’s Compensation Appeal Board (INA Life Insurance Company), 659 A.2d
45, 47 (Pa. Cmwlth. 1995). If medical expenses are not related to a work injury,
the employer is not required to pay them and is not subject to a penalty for non-
payment. Id. However, if the employer refuses to pay bills because it believes
they are not causally related to a work injury, the employer risks being assessed a
penalty if the WCJ determines that they are, in fact, causally related. Id. at 48.
                Under Section 306(f.1)(5) of the Act, 77 P.S. §531(5), the employer
must pay the claimant’s medical invoices within 30 days of receiving them, unless
the employer disputes the reasonableness and necessity of the treatment.13 In that


(continued . . .)
                payable: Provided, however, That such penalty may be increased
                to fifty per centum in cases of unreasonable or excessive delays.
                Such penalty shall be payable to the same persons to whom the
                compensation is payable.
77 P.S. §991.
13
   Section 306(f.1)(5) states, in relevant part, as follows:
(Footnote continued on the next page . . .)
                                                   7
circumstance, the employer must submit the invoices for a utilization review or
face the possibility of a penalty. Hough v. Workers’ Compensation Appeal Board
(AC&T Companies), 928 A.2d 1173, 1180 (Pa. Cmwlth. 2007). The medical cost
containment regulations permit the employer to “suspend payment” of medical
bills for which utilization review has been requested during the 30-day period. 34
Pa. Code §127.208(e). The “right to suspend payment shall continue throughout
the [utilization review] process.” Id.
               Claimant argues that he proved Employer violated the Act because it
did not reimburse Injured Workers Pharmacy for Claimant’s medications
prescribed by Dr. Masceri. Claimant contends that Employer was obligated to pay
for those medications, at least until Employer filed its utilization review request.
               Employer responds that Claimant simply did not present enough
evidence, such as Dr. Masceri’s notes, to connect his pharmaceutical costs to his
1999 work injury. As such, he failed to meet his burden of proof on the penalty
petition. We agree with Employer.
               Failure to pay medical expenses, by itself, does not prove a violation
of the Act. Only if an employer fails to pay medical expenses related to that work
injury has a violation occurred. It is undisputed that Employer is liable for medical
expenses that are causally related to Claimant’s February 3, 1999, work injury.



(continued . . .)
        All payments to providers for treatment provided pursuant to this act shall be
        made within thirty (30) days of receipt of [the provider’s] bills and records unless
        the employer or insurer disputes the reasonableness or necessity of the
        treatment….
77 P.S. §531(5).


                                                 8
This case involves medications prescribed by Dr. Masceri as of May 1, 2013. It
was Claimant’s burden to show that the prescriptions were for treatment of his
work injury, and he did not do so. Dr. Masceri’s notes do not contain a date of
injury for which he is treating Claimant and do not specifically refer to a work
injury. The notes mention back pain, but they also mention a knee replacement
which was not part of the 1999 work injury. This case is complicated by the fact
that Claimant was apparently simultaneously litigating a claim against a different
insurer for work injuries that were alluded to but not fully explained on the record.
It is unclear whether those work injuries involved Claimant’s back and whether Dr.
Masceri was treating Claimant for those injuries or the original 1999 work injury.
Under the circumstances, the Board did not err in concluding that Claimant failed
to meet his burden of proof on the penalty petition.
              Claimant argues that a remand is required for the parties to supply the
WCJ with the missing deposition exhibits and other missing Bureau documents
such as the amended NCP, Compromise and Release Agreement and the utilization
review request. Claimant asserts that when all exhibits are submitted to the WCJ,
it will be clear that Dr. Masceri has been treating Claimant for his work injury and
all prescriptions are related to that injury.14 Claimant characterizes the missing
exhibits and the absence of the date of injury in Dr. Masceri’s office notes as
“details” and contends that the WCJ improperly relied on “technical reasons to




14
  Employer argues that Claimant waived the issue of missing evidence by not raising it in his
appeal to the Board. Based on our review of Claimant’s Board appeal form, we are satisfied that
Claimant sufficiently raised the issue.


                                              9
dismiss a clearly meritorious petition,” making his decision not a reasoned one.15
Claimant’s Brief at 11.
              Claimant’s burden to prove a violation of the Act required evidence
that the prescriptions, which Employer did not pay, were prescribed by Dr. Masceri
for Claimant’s 1999 work injury. It was Claimant’s responsibility to ensure that all
pertinent evidence be given to the WCJ prior to the close of the record, which
included exhibits referenced in the Thomas and Gonder depositions as well as the
Bureau record documents. The WCJ’s decision accurately and thoroughly dealt
with the evidence submitted to him and, thus, it is a reasoned decision. In any
case, the missing Bureau documents were not fatal to Claimant’s petition. The
WCJ acknowledged that Claimant had a February 1999 work injury involving his
back; that the parties executed a Compromise and Release Agreement continuing
Claimant’s eligibility for work-related medical expenses; and that Employer filed a
utilization review request seeking review of Dr. Masceri’s treatment. Further,
Claimant has not explained why the missing exhibits are important or relevant.16
In short, Claimant has not shown that a remand is appropriate or necessary.



15
   Section 422(a) of the Act requires the WCJ to issue a reasoned decision “containing findings
of fact and conclusions of law based upon the evidence as a whole which clearly and concisely
states and explains the rationale for the decisions so that all can determine why and how a
particular result was reached.” 77 P.S. §834.
16
    We have reviewed the depositions. The Thomas deposition referred to two letters to
Claimant’s counsel from Injured Workers Pharmacy regarding non-payment of medical bills and
the change of insurance carriers from Gallagher Bassett to Seabright, and a spreadsheet prepared
by Injured Workers Pharmacy showing the last payment received and the outstanding balance.
The Gonder deposition referenced Employer’s September 23, 2013, utilization review request
and medical documents, notes and bills Seabright received within 30 days prior to filing for
utilization review.


                                              10
              Finally, Claimant argues that Employer had no basis for denying
payment of Claimant’s prescription medications because Employer failed to prove
that it properly filed its September 23, 2013, utilization review request or that the
Bureau ever processed it.          Claimant also posits that Employer erroneously
requested review of only Dr. Masceri’s treatment when it also should have listed
Injured Workers Pharmacy as a separate provider.17
              Employer’s utilization review request is not relevant to the denial of
the penalty petition. As explained, Claimant could not prevail in this litigation
because he failed to prove that the unpaid prescription medications were related to
his February 1999 work injury. The burden never shifted to Employer.
              For the above-stated reasons, we affirm the Board’s order.

                                        _____________________________________
                                        MARY HANNAH LEAVITT, President Judge




17
  Claimant suggests that the WCJ’s finding that he could not determine what date of injury Dr.
Masceri was prescribing medication for “strains the imagination” considering that the only
reason Employer would file for utilization review of Dr. Masceri’s treatment is because Dr.
Masceri was treating Claimant for his work injury. Claimant’s Brief at 17. We disagree.
Employer did not admit that the prescriptions were causally related to the work injury and
explained to the WCJ that litigation was pending involving other alleged injuries that would be
the responsibility of another insurer. Claimant submitted no evidence from Dr. Masceri himself
explaining whether he was treating Claimant for the work injury and which prescriptions, if any,
were for treatment of that injury as opposed to a different work injury or a non-work-related
condition.


                                              11
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Lines,                         :
                   Petitioner       :
                                    :
              v.                    :   No. 1960 C.D. 2015
                                    :
Workers’ Compensation Appeal        :
Board (Specialty Haulers, Inc./     :
AARLA),                             :
                  Respondent        :

                                  ORDER

              AND NOW, this 8th day of June, 2016, the order of the Workers’
Compensation Appeal Board dated October 2, 2015, in the above-captioned matter
is hereby AFFIRMED.
                                  _____________________________________
                                  MARY HANNAH LEAVITT, President Judge
