PA Claimant’s Benefits Terminated: 18 Months of Home Remedies Did Not Constitute Medical Treatment

The Pennsylvania Commonwealth Court held a WCJ appropriately relied upon the medical opinion of the employer’s examining physician in which the doctor opined that the workers’ compensation claimant had made a full recovery from her work-related injury based, in significant part, on the fact that the claimant had not sought treatment from a physician for an 18-month period [Ciarolla v. Workers’ Comp. Appeal Bd. (Astrazeneca Pharms. LP), 239 A.3d 204 (Pa. Cmwlth. 2021)]. The Court held the Board was justified in finding, based upon the employer’s physician’s opinion, that the claimant’s 18-month period of home remedies did not amount to medical treatment. Accordingly, sufficient evidence existed to support the Board’s decision to allow the employer’s termination petition.

Background

Claimant sustained an injury to her lower back on January 9, 2014, when the vehicle in which she traveling for work as a pharmaceutical sales representative was struck by a school bus. Her employer accepted the lumbar sprain/strain injury and issued a Notice of Compensation Payable. On June 21, 2017, the employer filed a termination petition, alleging Claimant had fully recovered from her work injury as of November 21, 2016.

Following hearings, the WCJ granted the employer’s termination petition. In support of its petition, the employer presented the testimony of Dr. James L. Cosgrove, M.D., a board-certified physical medicine and rehabilitation specialist, who examined Claimant on November 21, 2016. Dr. Cosgrove asserted that Claimant had a pre-existing back condition that predated the work injury. According to Dr. Cosgrove’s testimony, Claimant had a “gap” in her treatment from October 2014 until March 2016 when she received “essentially no treatment.”

Claimant presented testimony from Dr. Paul S. Lieber, M.D., Claimant’s treating physician, who first examined Claimant on November 1, 2016, at which point Claimant informed him about the work injury. Dr. Lieber diagnosed Claimant with spondylosis with radiculopathy of the lumbar region, spondylolisthesis of the lumbar region, and disc degeneration of the lumbar region. He attributed these conditions to the work injury, explaining that the injury either caused these conditions or caused pre-existing conditions to become symptomatic. However, Dr. Lieber could not definitively identify the January 2014 work injury as the cause of Claimant’s spondylolisthesis. In his opinion, the conditions could have been degenerative in nature.

The WCJ found Claimant’s testimony regarding her work injury to be credible, but in relying on the testimony of Dr. Cosgrove, the WCJ determined Claimant had fully recovered from the work injury. The employer raised hearsay objections to the admission of portions of Dr. Lieber’s testimony. Dr. Lieber referenced opinions of Dr. Cortazzo and Dr. Bookwalter, who had a history of treating Claimant. However, as these physicians were not deposed, and the employer did not have the opportunity to cross-examine these individuals, the WCJ sustained the employer’s objections.

Appeal to Board

On appeal to the Board, Claimant argued that the WCJ erred by sustaining hearsay objections to medical reports offered to corroborate the testimony of Dr. Lieber. Claimant also asserted that as these medical reports were not considered, Dr. Cosgrove did not assess all of the evidence. Claimant contended that if Dr. Cosgrove did not consider the full evidence, then his testimony was incompetent. The Board was not persuaded by these arguments and affirmed the decision of the WCJ. Claimant petitioned for further review.

Commonwealth Court’s Decision: Hearsay

As to Claimant’s hearsay argument, the Court noted that in earlier cases it had held that the use of hearsay evidence is limited to cases where there is corroborating evidence and there is no objection on the record. The court indicated that the testimony of Dr. Cortazzo and Dr. Bookwalter were inadmissible hearsay on the basis of McCray v. Workmen’s Comp. Appeal Bd. (Preschool Development Programs, Inc.), 167 Pa. Commw. 402, 648 A.2d 348 (Pa. Cmwlth. 1994) alone. The employer properly raised objections to the admission of the evidence to the WCJ. As objected-to hearsay evidence, the testimony of Dr. Cortazzo and Dr. Bookwalter was inadmissible hearsay.

Gap in Medical Treatment

Claimant argued that the WCJ erred in finding that Claimant had fully recovered from her work-related injury based on the testimony of Dr. Cosgrove. Claimant asserted that Dr. Cosgrove’s medical opinion was incompetent as it relied on the fact that Claimant had a 18-month gap in treatment with a medical doctor. According to Claimant, the gap in treatment was a mischaracterization of Claimant’s treatment activities, and therefore, the evidence could not support a finding of full recovery.

The court disagreed, noting that Dr. Cosgrove had demonstrated that Claimant did not actively treat with any physicians for her work injury during the period from October 2014 to March 2016. The court acknowledged Claimant’s testimony indicating that, under the advisement of Dr. Zong Fu Chen, M.D., a pain management specialist, Claimant took oral and topical medications and performed at-home exercises. The court also noted, however, that Dr. Cosgrove had indicated that this did not qualify as treatment because Claimant did not actively consult with a medical professional regarding her condition for an 18-month period.

The court indicated that the WCJ found this argument convincing and, within his discretion, determined that the 18-month period amounted to a gap in Claimant’s treatment. Dr. Cosgrove assessed the at-home exercise and oral and topical care as not amounting to treatment. The WCJ relied on Dr. Cosgrove’s medical opinion in making his termination determination. The court concluded that the findings of Dr. Cosgrove were not, as Claimant argued, contrary to the established facts of record.

No Exacerbation of Claimant’s Pre-Existing Degenerative Disease

As to Claimant’s contention that the record evidence, including Dr. Cosgrove’s testimony, established that the work injury exacerbated Claimant’s pre-existing lumbar symptoms, the Commonwealth Court disagreed. It observed that the WCJ found Dr. Cosgrove’s testimony to be credible, and the testimony did not indicate that Claimant’s pre-existing lower back condition was “aggravated” by the January 9, 2014 work injury. As a result, Dr. Cosgrove established that Claimant fully recovered from her work injury and did not experience an exacerbation of a pre-existing condition. Employer presented sufficient evidence in support of the termination petition. Based upon all the foregoing, the Commonwealth Court affirmed the Board’s order that, in turn, affirmed the WCJ’s findings.