IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Nicholas Miloser

, : Petitioner :

:

v. :

: Workers’ Compensation Appeal : Board (Remacor, Inc.), : No. 980 C .D. 201 7 Respondent : Submitted: November 22 , 2017

BEFORE: HONORABLE ROBER T 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 ’ Compensati on (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)

.
Cl aimant presents two issues for this C ourt’s review: (1) whether Remacor, Inc.

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

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

we affirm.

Claimant sustained an inju ry 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 d ecision

, the WCJ approved an

indemnity

- only Compromise & Release Agreement, under which Employer remain ed2

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 treatment s rendered

, and/or otherwise

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

future. I n a December 30, 2015 UR Determination

, Rene Riga l , 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 D r.

Stoner ’s care from September 3, 2015 forward

. A WCJ hearing was held on

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

Claimant’s ongoing use of opiate compounds

, i.e., Kadian and Opana, because it is

unreasonable an d unnecessary, but den ied 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 th at 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[,] t his 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 m e et 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 Cla i mant does not use it in that fashion . Further,

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

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

T he law is well

- settled that “[t]he WCJ has exclusive authority to act as

fact finder, determine credibility of witnesses, and wei gh 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.

Co ntrary to Claimant’s argument, Dr. Stoner specifically prescribed

Kadia n “ 200mg 3 tablets twice a day [pro re nata 3 (] 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 K adian

is used to help relieve chronic moderate to severe ongoing pain and belong s 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 orderi ng 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 o r they cannot be taken. I t works in the brain an d nervous system

to reduce pain and only for use when continuous (around

the

- 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 i s 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 d eemed credible, and

a ccepted [.]” R.R. at 19a. Accordingly, Employer me t 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 re cord . 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 circumstanc es 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 ac cordingly, 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 contenti on. 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 tha t 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 6.5 Claimant maintains that the error is not harmless because the WCJ relied

on t hi s findi ng 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 unnecessar y, 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 Ta sk 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 hold s that because all necessary findings made by the WCJ

are supported by s ubstantial 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 P arcel S erv

. ), 504 A.2d 985, 988 (Pa.

Cmwlth. 1986).

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

___________________________ ANNE E. COVEY, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Nicholas Miloser, : Petitioner :

:

v. :

: Workers’ Compensation Appeal : Board (Rema cor, Inc.), : No. 980 C.D. 2017 Respondent :

O R D E R

AND NOW, this 12 th day of March , 201 8

, the Workers’ Compensation

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

___________________________ ANNE E. COVEY, Judge