IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas Haslam, :

Petitioner :

:

v. : No. 1655 C.D. 2016

: SUBMITTED: February 10, 2017

Workers’ Compensation Appeal :

Board (London Grove :

Communication), :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE JULIA K. HEARTHWAY, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY

JUDGE HEARTHWAY FILED: September 1, 2017

Thomas Haslam (Claimant) petitions for review of the September 9, 

2016 order of the Workers’ Compensation Appeal Board (Board), which reversed 

the decision of a workers’ compensation judge (WCJ). The Board granted the 

petition of London Grove Communication (Employer) to review utilization review

(UR) determination and denied Claimant’s petition to review medical treatment 

and/or billing (Medical petition). For the reasons set forth below, we reverse.

On February 16, 1998, Claimant was injured in the course and scope 

of his employment with Employer when he fell off of a building and shattered his 

right ankle, tibia, and fibula, and suffered a left calcaneus fracture, as well as 
2

injuries to his neck and low back. Employer issued a notice of compensation 

payable (NCP), accepting Claimant’s injury.1 A supplemental agreement was 

entered into between the parties on January 29, 2001. The supplemental agreement 

modified Claimant’s indemnity benefits as of October 24, 2000, due to Claimant’s 

return to work with a loss of earnings. The injury information refers to Claimant’s 

injury as “R & L Foot Fracture.” (Supp. Agrmt., at 1.) Thereafter, in 2008, the 

parties entered into a compromise and release agreement (C&R Agreement) and 

settled the indemnity portion of the case for $110,000.00.2 

Thereafter, Employer filed a UR request, seeking review from January 

6, 2014 and ongoing “on any and all compounded medication” provided by Evan 

D. Frank, M.D. (UR request, at 1.) On February 19, 2014, the UR was assigned to 

Administrative Reviewer Michael J. Drass, M.D. Dr. Drass performed the UR of 

Claimant’s compounded medications from January 6, 2014, and prospectively, and 

determined that they were reasonable and necessary expenses related to the 

acknowledged work-injury.

On May 20, 2014, Employer filed the instant UR review petition, 

challenging the UR determination of Dr. Drass. Employer argued that the 

condition Claimant was being treated for by Dr. Frank, RSD/CRPS,3 was not 

 

1

The NCP is not in the record, thus the injuries accepted by Employer in the NCP are unknown.

2

The copy of the C&R Agreement presented at the hearing was not dated or signed. However, 

all parties agree to its content and admission into the record.

3 RSD, or reflex sympathetic dystrophy, is now referred to as CRPS, or complex regional pain 

syndrome.
3

expressly accepted by Employer in the C&R Agreement. Thus, Employer asserted 

that Dr. Drass’ UR determination was in error.

On May 30, 2014, Claimant filed the Medical petition alleging an 

incorrect injury description and worsening of his condition. Claimant requested 

recognition of the RSD/CRPS as being related to his February 16, 1998 work 

injury and a determination regarding whether certain treatment was related thereto. 

Hearings were held before the WCJ, at which Employer presented the 

April 23, 2014 UR performed by Dr. Drass. Dr. Drass determined that the 

compounded medication reviewed was reasonable and necessary. (UR 

Determination, at 2.) Dr. Drass’ UR report indicated a diagnosis from Dr. Frank of 

“neuropathic pain of both feet.” (UR Report, at 2.) Dr. Drass reviewed Claimant’s 

medication regimen, which included various doses of Vioxx, Elavil, OxyContin, 

and Percocet each day. Dr. Drass listed Claimant’s diagnoses as RSD/CRPS of the 

lower extremities with increasing depression secondary to situational anxiety, low 

back pain, chronic lower extremity pain. (Id.) Dr. Drass looked at the 

“compounded medication” prescribed by Dr. Frank from January 6, 2014, and 

specifically, the standard antineuropathic cream.4 (Id., at 3.) Dr. Drass determined 

that the antineuropathic cream does provide Claimant “with some good relief of his 

lower extremity RSD/CRPS complaints, thereby allowing him to continue to 

 

4

The antineuropathic cream contains compound agents of ketamine, gabapentin, amitriptyline, 

baclofen, clonidine, and bupivacaine and is to be applied two to three times a day, as needed. 

(UR Report, at 3.)
4

perform his daily activities on a fairly remarkable level.” (Id.) Thus, he concluded 

that the compounded medication was reasonable and necessary. (Id., at 5.) 

Claimant also presented the July 22, 2014 narrative report of Dr. 

Frank. The report was dictated at Claimant’s request to justify Dr. Frank’s 

treatment regarding the medications prescribed to Claimant from January 6, 2014 

and forward. Dr. Frank reported that Claimant had undergone surgical fusion, and 

open reduction internal fixation surgery due to the fractures he suffered after the 

work-related fall. (Dr. Frank Report, at 1.) Dr. Frank observed that the fractures 

healed but Claimant had continuing pain. (Id.) Dr. Frank diagnosed Claimant with 

RSD/CRPS and sees Claimant every three to six months. (Id.) Dr. Frank treats 

Claimant’s pain with various medications, including the antineuropathic cream, 

which Claimant found beneficial. (Id.) Dr. Frank stated that “the treatment 

involving the compounded medications are appropriate and necessary for 

controlling this patient’s pain and symptoms from RSD.” (Id., at 2.) 

The WCJ found the reports of Dr. Frank and Dr. Drass credible and 

persuasive. The WCJ stated that:

Both Dr. Frank and Dr. Drass support the care under 

review as reasonable and necessary; both also support 

additional injuries as noted above as being within the 

ambit of accepted injuries as described in the C&R 

Agreement. In this regard, even without reference to 

“various injuries” under the C&R [Agreement] (under 

which the ambit of additional conditions would qualify), 

relief can appropriately be granted to the Claimant in that 

this record supports the additional conditions as resulting 

from the accepted “R and L Foot Fracture” work injuries 

described in both the Supplemental Agreement and the 

C&R Agreement. The record as presented clearly 
5

implicates the foot fractures as the operative reason for 

Claimant’s continuing work related problems despite 

healing of the “fractures” themselves—Claimant’s 

continuing problems flow from the existing “fractures.”

(F.F. No. 8.) 

The WCJ denied Employer’s Review UR petition and granted 

Claimant’s Medical petition, finding the treatment under review reasonable and 

necessary as determined by Dr. Drass and that the treatment for RSD/CRPS was 

within the scope of the C&R Agreement. Employer appealed to the Board.

The Board determined that the C&R Agreement precluded Claimant 

from expanding the description of his injury. The Board agreed that Employer 

“remained responsible for all reasonable and necessary medical expenses related to 

the acknowledged injuries.” (Board Op. at 1.) However, the Board found that 

Claimant’s RSD/CRPS diagnosis was not acknowledged by the C&R Agreement. 

Thus, it determined that Employer is not responsible for the medical expenses 

related to the RSD/CRPS diagnosis. The Board noted that the C&R Agreement 

was entered into approximately five years after Claimant began treating with Dr. 

Frank for the RSD/CRPS. The Board asserted that “[t]o construe ‘various injuries’ 

as wholly open-ended is to defeat the purpose of encouraging settlements and 

finality.” (Board Op. at 7.) Thus, the Board reversed the WCJ’s decision. 

Claimant now petitions this Court for review.5

 

5 Our review is limited to determining whether constitutional rights were violated, whether the 

adjudication is in accordance with the law and whether necessary findings of fact are supported 

by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704. 
6

Employer’s UR Petition

The utilization review process provides an avenue for challenging

whether medical treatment provided under the Workers’ Compensation Act6(Act) 

is reasonable and necessary. Section 306(f.1)(6)(i), 77 P.S. § 531(6)(i). In 

utilization review, the employer bears the burden of proving that the challenged 

medical treatment is unreasonable or unnecessary. Gary v. Workers’ 

Compensation Appeal Board (Philadelphia School District), 18 A.3d 1282, 1288 

(Pa. Cmwlth. 2011). In determining reasonableness and necessity of a prescribed 

medication, it is appropriate for the administrative reviewer to assess the 

“treatment in the context of the entire course of care for the work-related injury.” 

Seamon v. Workers’ Compensation Appeal Board (Sarno & Son Formals), 761 

A.2d 1258, 1262 (Pa. Cmwlth. 2000) (en banc).

In this case, Employer does not contend that the challenged treatment 

is not a reasonable and necessary treatment for Claimant’s pain, which is described 

by Drs. Frank and Drass as RSD/CRPS. Rather, Employer argues that it should 

not be liable for treatment for RSD/CRPS because in the C&R Agreement 

Employer only accepted responsibility for “fractured right and left feet.”

In Bloom v. Workers’ Compensation Appeal Board (Keystone Pretzel 

Bakery), 677 A.2d 1314 (Pa. Cmwlth. 1996), this Court discussed the scope of the 

UR process. Pursuant to regulation, the UR process is the proper method for 

determining whether disputed treatment is reasonable and necessary. Id. at 1318; 

 

6 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
7

34 Pa. Code § 127.406(a). However, the UR process is not the proper method to 

determine the causation of an injury or condition. Bloom, 677 A.2d at 1318; 34 

Pa. Code § 127.406(b). In Bloom we held that the regulation recognized—

. . . a distinction between an issue concerning causation 

as opposed to reasonableness and necessity of treatment. 

An action concerning causation cannot be raised before a 

[utilization review organization]; therefore, it must be 

raised in a petition that is intended to be heard directly by 

a WCJ. Likewise, an action concerning the 

reasonableness and necessity of treatment is to be raised 

in a request for UR that will be submitted to a [utilization 

review organization].

677 A.2d at 1318.

Similarly, the UR process, which is tailored to the narrow question of 

medical necessity and reasonableness, is not the proper vehicle for an employer to 

litigate the question of whether a particular injury or condition is within the scope 

of an injury acknowledged in a C&R agreement. See 34 Pa. Code § 127.406. As 

with a causation challenge, the proper procedure for an employer to address the 

scope of an acknowledged injury would be to file a petition for review to be heard 

by a WCJ. See Section 413(a) of the Act, 77 P.S. § 771. The Board erred by 

reversing the decision of the WCJ denying Employer’s UR petition.

Claimant’s Medical Petition

Claimant’s argument may be understood as contending that the Board 

erred in reversing the WCJ’s decision to grant his Medical petition in two ways: 

(1) in determining that Claimant was precluded from expanding or modifying the 
8

description of his injury in the C&R Agreement; and (2) in determining that 

Claimant’s treatment for pain was beyond the scope of the treatment the Employer 

agreed to pay for in the C&R Agreement.

In DePue v. Workers’ Compensation Appeal Board, (N. Paone 

Construction, Inc.), the claimant sought to amend the description of an 

acknowledged work injury more than two years after entering into a C&R 

agreement that identified the injury as “a severe closed head injury with seizure 

disorder and short term memory loss.” 61 A.3d 1062, 1064 (Pa. Cmwlth. 2013). 

Specifically, the claimant sought to add a left shoulder injury to that description, 

arguing that the shoulder injury had been erroneously omitted from the articulation 

of the acknowledged injury in the C&R agreement. Id. at 1065. 

This Court rejected that argument and ruled that once a valid C&R 

agreement is approved, “it is final, conclusive[,] and binding on the parties.” Id. at

1067. An approved C&R agreement may only be set aside “upon a clear showing 

of fraud, deception, duress, mutual mistake, or unilateral mistake caused by” fault 

of the opposing party. Id. Otherwise, the C&R agreement may not be amended. 

Id. 

In this case, there is no allegation or evidence of fraud, deception, 

duress or mistake. There is, therefore, no basis to set aside or amend the C&R 

Agreement. DePue. Accordingly, the Board was correct in concluding that the 

Claimant could not expand or modify the description of the injury acknowledged 

in the C&R Agreement.
9

However, the second prong of Claimant’s argument—that the Board 

erred in determining that the medical treatment at issue was beyond the scope of 

the C&R Agreement—requires us to look at more than just the description of the 

acknowledged injury. We must also look at the description of Employer’s 

accepted responsibility for medical treatment causally related to the injury. In this 

case, the C&R Agreement is set forth on a standardized form generated by the 

Department of Labor and Industry, Bureau of Workers’ Compensation.7 The 

document describes Claimant’s injury as “[v]arious injuries and bodily parts 

including but not necessarily limited to fractured right and left feet.” (C&R 

Agreement, ¶ 4, at 1.) In response to a prompt for a summary of “all benefits to be 

paid on and after the date of this stipulation or agreement for reasonable and 

necessary medical treatment causally related to the injury and the length of time 

such payment of benefits is to continue,” the C&R Agreement states:

The Workers’ Compensation Insurance Carrier, herein, 

agrees to pay for all reasonable and necessary medical 

expenses that are related to the aforesaid acknowledged 

work-related injury (ies) pursuant to the terms and 

conditions of the Pennsylvania Workers’ Compensation 

Act, as amended. The Workers’ Compensation Insurance 

Carrier, herein, reserves the right to submit any bill(s) 

and expense(s) to Utilization Review and/or use any 

other provision(s) of the Act regarding the payment of 

any bills for medical treatment as aforesaid.

(Id., ¶ 10, at 2.)

 

7

The form is titled “Compromise and Release Agreement by Stipulation pursuant to Section 449 

of the Workers’ Compensation Act,” or “LIBC-755.”
10

Thus, Employer agreed to “pay for all reasonable and necessary 

medical expenses that are related to the. . . acknowledged work-related injury. . . 

.” (C&R Agreement, ¶ 10, at 2) (emphasis added.) In the C&R Agreement, 

Employer did not agree to pay only for medical treatment of Claimant’s fractured 

feet; Employer agreed to pay for all reasonable and necessary medical expenses 

related to Claimant’s fractured feet.8 

When there is a dispute regarding whether medical treatment is 

beyond the scope of a C&R agreement, assignment of the burden of proof depends 

on the relationship between the treatment and the acknowledged injury. Though 

there was no C&R agreement in Kurtz v. Workers’ Compensation Appeal Board

(Waynesburg College), 794 A.2d 443 (Pa. Cmwlth. 2002), we find this case to be 

instructive. In Kurtz, the employer accepted responsibility for the claimant’s head 

injury, which was described as “a grade two concussion with retrograde amnesia 

and severe paracervical spasms.” Id. at 445. More than one year later, the 

claimant sought medical treatment for pain that emerged “in the area of the original 

injury.” Id. However, employer refused to pay for this treatment. Id. at 446. 

The claimant in Kurtz then sought review with a WCJ, who ruled for 

the employer after determining that the claimant failed to meet his burden of 

proving with “unequivocal medical evidence. . . that his current condition was 

causally related to his work injury. . . .” Id. at 447. The claimant appealed to this 

 

8

The C&R Agreement clearly limited Employer’s responsibility for the indemnity aspects of 

Claimant’s work injury. However, the language of ¶ 10 of the C&R Agreement does not

expressly limit Employer’s responsibility for medical expenses associated with the 

acknowledged injury in any way. Consequently, Employer remains responsible for medical 

treatment of the acknowledged injury.
11

Court, arguing that because his symptoms were “obviously related to his original 

work-related injury” the burden should be on the employer “to establish that the 

symptoms were unrelated to the original injury.” Id. This Court agreed with the 

claimant:

If. . . a claimant receives medical treatment for new 

symptoms that allegedly arise from the compensated 

injury, and the employer refuses to pay the associated 

bills, the burden of establishing that the symptoms and 

treatments are related to the compensable injury turns on 

whether the connection is obvious. See e.g., Hilton Hotel 

Corp. v. Workers’ Compensation Appeal Board (Totin), 

[518 A.2d 1316 (Pa. Cmwlth. 1986)].

An “obvious” connection “involves a nexus that is so 

clear that an untrained lay person would not have a 

problem making the connection between” the new 

symptoms and the compensated injury; the new 

symptoms would be a “natural and probable” result of the 

injury [Tobias v. Workers’ Compensation Appeal Board

(Nature’s Way Nursey, Inc.), 595 A.2d (Pa. Cmwlth. 

1991); see McDonnell Douglas Truck Services, Inc. v. 

Workers’ Compensation Appeal Board (Feldman), 655 

A.2d 655 (Pa. Cmwlth. 1995)]. If the new symptoms and 

the compensable injury are obviously related, and 

benefits have not been terminated, then the claimant will 

benefit from the presumption that the new symptoms are 

related to the compensable injury and, thus, his 

employment, and it will be the burden of the employer to 

prove that the new symptoms complained of are 

unrelated to the compensable injury.

Id. at 447-48. 

In this case, Employer accepted responsibility for treatment for 

Claimant’s fractured feet. Thereafter, Claimant sought treatment for pain in those 
12

feet. There exists an obvious connection between the injury and the pain. For 

Employer to avoid responsibility for the medical expenses resulting from treatment 

of the pain in Claimant’s feet, Employer must prove that the treatment is for an 

injury that is distinct from the acknowledged injury. Kurtz. However, Employer 

presented no such medical evidence to the WCJ. In fact, all of the medical 

evidence presented tended to show the opposite. Employer merely argued that 

RSD/CRPS is not specifically acknowledged in the C&R Agreement. This 

argument, without supporting medical evidence, is insufficient to show that the 

RSD/CRPS is a distinct injury beyond the scope of the C&R Agreement. The 

holding in DePue does not compel a different result on this question, as the 

relevant issue there was whether the claimant could amend a C&R agreement 

absent evidence of fraud, deception, duress or mistake, not whether treatment was 

within the scope of a C&R agreement.

The Board erred in concluding that Employer was not responsible for 

medical expenses related to Claimant’s RSD/CRPS where (1) substantial evidence 

in the record supported the WCJ’s determination that the condition was related to 

the acknowledged work injury; (2) the C&R Agreement stated that Employer was 

responsible for medical expenses related to the acknowledged work injury; and (3) 

Employer failed to present any evidence that the challenged treatment was beyond 

the scope of the C&R Agreement. 

Accordingly, we reverse.

__________________________________

JULIA K. HEARTHWAY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas Haslam, :

Petitioner :

:

v. : No. 1655 C.D. 2016

:

Workers’ Compensation Appeal :

Board (London Grove :

Communication), :

Respondent :

O R D E R

AND NOW, this 1

st day of September, 2017, the order of the 

Workers’ Compensation Appeal Board in the above-captioned matter is reversed.

__________________________________

JULIA K. HEARTHWAY, Judge