IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Nicholas Miloser, :

Petitioner :

:

v. :

:

Workers’ Compensation Appeal :

Board (Remacor, Inc.), : No. 980 C.D. 2017

Respondent : Submitted: November 22, 2017

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: March 12, 2018

Nicholas Miloser (Claimant) petitions this Court for review of the 

Workers’ Compensation (WC) Appeal Board’s (Board) June 28, 2017 order 

affirming the Workers’ Compensation Judge’s (WCJ) decision granting in part and 

denying in part Claimant’s Utilization Review (UR) Review Petition (Petition). 

Claimant presents two issues for this Court’s review: (1) whether Remacor, Inc.

(Employer) met its burden of proof on Claimant’s Petition; and, (2) whether the WCJ 

erred by relying on medical literature that was not part of the record. After review, 

we affirm.

Claimant sustained an injury on August 18, 2006, in the course of his 

employment with Employer. On September 14, 2006, Employer issued a Notice of 

Temporary Compensation Payable describing Claimant’s injuries as multiple physical 

injuries - neck and right arm. In a May 19, 2010 decision, the WCJ approved an 

indemnity-only Compromise & Release Agreement, under which Employer remained
2

responsible for all reasonable, necessary, and causally-related medical benefits for the 

August 18, 2006 work injury. Subsequently, Employer filed a UR Request with the 

WC Bureau seeking review of the reasonableness and necessity of all of Claimant’s 

office visits and medications provided, and/or treatments rendered, and/or otherwise 

planned by J. Fred Stoner, M.D. (Dr. Stoner) from September 3, 2015 and into the

future. In a December 30, 2015 UR Determination, Rene Rigal, M.D. (Dr. Rigal)

opined that none of Dr. Stoner’s care was reasonable or necessary for Claimant’s 

work injury.

On January 20, 2016, Claimant filed his Petition seeking a review of Dr. 

Stoner’s care from September 3, 2015 forward. A WCJ hearing was held on 

February 23, 2016. On July 1, 2016, the WCJ affirmed the Petition with respect to 

Claimant’s ongoing use of opiate compounds, i.e., Kadian and Opana, because it is 

unreasonable and unnecessary, but denied the Petition as to other treatment 

modalities because they are reasonable and necessary. Claimant appealed to the 

Board. On June 28, 2017, the Board affirmed the WCJ’s decision. Claimant 

appealed to this Court.1

Initially, “[t]he [UR] process provides an avenue for challenging 

whether medical treatment provided under the [WC] Act (Act)[2]is reasonable and 

necessary. Section 306(f.1)(6)(i) [of the Act], 77 P.S. § 531(6)(i). In [UR], the 

employer bears the burden of proving that the challenged medical treatment is 

unreasonable or unnecessary.” Haslam v. Workers’ Comp. Appeal Bd. (London 

Grove Commc’n), 169 A.3d 704, 708 (Pa. Cmwlth. 2017).

 

1

“On review[,] this Court must determine whether constitutional rights were violated, errors 

of law were committed, or necessary findings of fact were supported by substantial competent 

evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6 

(Pa. Cmwlth. 2014).

2 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
3

Claimant first argues that Employer did not meet its burden of proving 

that Dr. Stoner’s opioid prescriptions for Claimant’s work injury are unreasonable or 

unnecessary, because Dr. Rigal testified that Kadian is not reasonable and necessary 

for occasional or short-term use, but Claimant does not use it in that fashion. Further, 

Claimant contends that Dr. Rigal declared that Opana is only used when other 

treatments do not work, but that is why Claimant takes it.

The law is well-settled that “[t]he WCJ has exclusive authority to act as 

fact finder, determine credibility of witnesses, and weigh the evidence. The WCJ’s 

findings will not be disturbed if they are supported by substantial, competent 

evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 

A.3d 598, 601 n.6 (Pa. Cmwlth. 2014) (citation omitted). “Substantial evidence has 

been defined as such relevant evidence as a reasonable mind might accept as adequate 

to support a conclusion.” Id. 

Contrary to Claimant’s argument, Dr. Stoner specifically prescribed 

Kadian “200mg 3 tablets twice a day [pro re nata3(]prn[)] for pain” and Opana 

“[extended release] ER 40 mg 1 tablet once a day prn for pain[.]” Reproduced 

Record (R.R.) at 50a (emphasis added). Dr. Rigal expressly reported that Kadian

is used to help relieve chronic moderate to severe ongoing 

pain and belongs to a class of drugs known as narcotic 

(opiate) analgesics. It works in the brain to change how the 

body feels and responds to pain. This medication is not 

for occasional ‘as needed’ or short term use and this dose 

and frequency [is] in excess of ordering guidelines . . . . 

R.R. at 69a (emphasis added). Dr. Rigal further explained that Opana

is also a narcotic (opioid) pain medicine only for use when 

other pain treatments do not treat pain well enough or they 

cannot be taken. It works in the brain and nervous system 

to reduce pain and only for use when continuous (aroundthe-clock) treatment is needed for a long time.

 

3 Pro re nata is Latin for as the thing is needed.
4

Id. (emphasis added). The fact that both Kadian and Opana were prescribed for 

Claimant “as needed” is clearly contrary to Dr. Rigal’s opinion that Kadian is not 

prescribed to be used as needed and Opana is only for long-term, around-the-clock 

use. The WCJ determined that “the conclusion of Dr. Rigal to the effect that the 

continuing use of opiate medication is contraindicated has been deemed credible, and

accepted[.]” R.R. at 19a. Accordingly, Employer met its burden of proof on 

Claimant’s Petition by presenting Dr. Rigal’s report.

 Claimant next contends that the WCJ erred by relying on medical 

literature that was not part of the record. Specifically, the WCJ declared:

[T]he academic medical literature is replete with highly 

credible commentary and conclusions supported by 

voluminous clinical studies to the effect that opiate 

medication should be utilized in very limited 

circumstances and for relatively short durations of time. 

The medical community is virtually in complete 

agreement with this assessment.

[C]laimant’s use of opiate compounds has endured 

considerably beyond the timeframe acknowledged as 

clinically appropriate, and accordingly, the conclusion of 

Dr. Rigal to the effect that the continuing use of opiate 

medication is contraindicated has been deemed credible, 

and accepted, and is supported, as reviewed above, in the 

voluminous clinical studies supportive of this contention. 

As such, ongoing use of opiate compounds is deemed 

unreasonable and unnecessary, for all of the reasons 

reviewed by Dr. Rigal in the report of December 30, 2015, 

as well as those reviewed above.

R.R. at 18a-19a (emphasis added). Claimant asserts that because the WCJ did not 

specify what medical literature or clinical studies he was referring to, and no medical 

literature or clinical studies were made part of the record, there is no evidence to 

support the WCJ’s ruling. The Board opined: “We agree that the WCJ did not 

provide specific medical literature or clinical studies, and none were made part of the 

record. However, this is harmless error.” Board Dec. at 6. 
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Claimant maintains that the error is not harmless because the WCJ relied 

on this finding as support for Dr. Rigal’s credibility on the issue of opiate medication. 

We disagree. Although the WCJ erred in citing to the medical literature, the WCJ 

unequivocally stated that “ongoing use of opiate compounds is deemed unreasonable 

and unnecessary, for all of the reasons reviewed by Dr. Rigal in the report of 

December 30, 2015[.]” R.R. at 19a (emphasis added). In addition, Dr. Rigal, in 

support of her report, reviewed Dr. Stoner’s records, as well as medical literature, 

including but not limited to: 

American Society of Anesthesiologists Task Force on 

Chronic Pain Management, American Society of Regional 

Anesthesia and Pain Medicine, Practice Guidelines for

Chronic Pain Management: An updated report by the 

American Society of Anesthesiologists Task Force on 

Chronic Pain Management and the American Society of

Regional Anesthesia and Pain Medicine, Anesthesiology, 

2010; Volume 112(4): pages 810-833.

R.R. at 73a. This Court holds that because all necessary findings made by the WCJ 

are supported by substantial evidence, the mention of medical literature and clinical 

studies “was mere surplusage and was, therefore, harmless error.” Gallo v. 

Workmen’s Comp. Appeal Bd. (United Parcel Serv.), 504 A.2d 985, 988 (Pa. 

Cmwlth. 1986). 

For all of the above reasons, the Board’s order is affirmed.

___________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Nicholas Miloser, :

Petitioner :

:

v. :

:

Workers’ Compensation Appeal :

Board (Remacor, Inc.), : No. 980 C.D. 2017

Respondent :

O R D E R

AND NOW, this 12th day of March, 2018, the Workers’ Compensation 

Appeal Board’s June 28, 2017 order is affirmed.

___________________________

ANNE E. COVEY, Judge