IN THE COMMONWEALTH COURT OF PENNSYLVANIA

YMCA of Wilkes-Barre and HM :

Casualty Insurance Company, :

Petitioners :

: No. 1072 C.D. 2017

v. : Submitted: January 19, 2018

:

Workers’ Compensation Appeal :

Board (Kempka), :

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge 

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE SIMPSON FILED: March 5, 2018

The YMCA of Wilkes-Barre and HM Casualty Insurance Company 

(collectively, Employer) petition for review from an order of the Workers’ 

Compensation Appeal Board (Board) that reversed the decision of a Workers’ 

Compensation Judge (WCJ), thereby granting benefits. The WCJ denied a review 

petition filed by Anthony Kempka (Claimant) from a Utilization Review (UR) 

determination relating to acupuncture treatments and prescription medication. Upon 

review, we affirm the Board’s order granting benefits.

I. Background

Claimant sustained a work injury in 2011, in the form of a C5-6 disc 

herniation with radiculopathy and insertional tendonitis. WCJ’s Op., 7/1/16, Finding 

of Fact (F.F.) No. 2. Claimant’s treating physician, Emmanuel Jacob, M.D.

(Claimant’s Physician), who is board certified in physical medicine and 
2

rehabilitation and is a licensed acupuncturist, provided ongoing medical treatment,

including acupuncture and a prescription muscle relaxer, Flexeril. F.F. Nos. 3, 9.

In 2015, Employer requested a UR of treatment provided by Claimant’s 

Physician. Tony Ton-That, M.D. (UR Physician), who is board-certified in physical 

medicine and rehabilitation and is a physician acupuncturist, issued the UR 

Determination. Certified Record (C.R.), Item #17. UR Physician determined 

Flexeril was no longer reasonable or necessary in the event Claimant was not 

receiving ongoing documented benefit from it. F.F. No. 3. Thus, UR Physician’s 

determination left open the issue of whether Claimant was receiving ongoing benefit 

from Flexeril. However, Claimant stopped taking Flexeril because of side effects 

that made him “dopey or spacey.” F.F. No. 7. Therefore, ongoing treatment with 

Flexeril is not at issue before this Court.

UR Physician further determined that ongoing acupuncture treatment 

was not reasonable or necessary because it was not providing Claimant with 

significant, long-lasting pain relief. F.F. No. 3. Claimant petitioned for review of 

that aspect of the UR Determination. 

On review, Claimant testified live before the WCJ. Claimant stated that

his weekly acupuncture treatments helped with his pain for a day or two, after which 

the pain slowly returned. F.F. No. 7. Claimant testified that, although it did not 

eliminate all his pain, the acupuncture treatment helped keep his overall level of pain

at bay. WCJ’s Hr’g, Notes of Testimony (N.T.), 12/22/15, at 11-15.
3

Claimant’s Physician, who testified by deposition, stated that the 

acupuncture treatments consistently reduced Claimant’s pain, with relief lasting two 

to three days. F.F. No. 9. Claimant’s Physician also explained that Claimant was 

taking opioid pain medications before he began treating with Claimant’s Physician, 

but with the acupuncture treatments, Claimant was able to avoid taking opioids. Id.

Employer presented deposition testimony from Robert Mauthe, M.D.

(Employer’s Physician), who is board-certified in physical medicine and 

rehabilitation. F.F. No. 8. Employer’s Physician opined that continued acupuncture 

treatments were not reasonable and necessary because they did not improve 

Claimant’s condition and only provided relief for a day or two. Id.

The WCJ did not reject the testimony of any witness as not credible. 

However, he found UR Physician and Employer’s Physician “most persuasive.” 

F.F. No. 10. He concluded that continued acupuncture treatment was not reasonable 

and necessary because it was not improving Claimant’s condition and the pain relief 

lasted only a day or two at a time. Id.

Claimant appealed to the Board, which reversed the WCJ’s decision. 

The Board observed that palliative treatment may be reasonable and necessary, even 

if it does not cure the underlying injury, as long as it alleviates pain and treats 

symptoms. Bd. Op., 7/7/17, at 2-3 (citing Trafalgar House v. Workers’ Comp. 

Appeal Bd. (Green), 784 A.2d 232 (Pa. Cmwlth. 2001), appeal denied, 800 A.2d 935 

(Pa. 2002); Cruz v. Workers’ Comp. Appeal Bd. (Phila. Club), 728 A.2d 413 (Pa. 

Cmwlth. 1999)). The Board did not disturb the WCJ’s findings on credibility or 
4

persuasiveness. Bd. Op. at 5-6. However, the Board determined the WCJ failed to 

consider Claimant’s testimony regarding his pain relief, in that the acupuncture 

provided a day or two of pain relief and helped keep the overall level of pain at bay. 

Id. at 6. Citing Cruz, the Board concluded acupuncture was reasonable and 

necessary, even though it was aimed at managing Claimant’s pain symptoms rather 

than improving or curing his condition. Id. at 6-7.

Employer then filed a timely petition for review to this Court.

II. Issues

On appeal,

1 Employer argues the Board improperly reweighed the 

evidence and the WCJ’s credibility determinations. Employer also contends the 

Board exceeded the scope of Claimant’s appeal, in that the only issue Claimant 

preserved was whether the WCJ failed to issue a reasoned decision. Employer 

asserts the Board should have found the WCJ issued a reasoned decision, and it

should have affirmed the WCJ on that basis.

III. Discussion

A. Claimant’s Preservation of Issues

As a preliminary matter, we observe that Claimant raised all his 

appellate issues in his notice of appeal to the Board. C.R., Item #5. However, 

Employer asserts Claimant failed to brief before the Board any issue other than 

 

1

 Our review of the Board’s decision is limited to determining whether an error of law was 

committed, whether necessary findings of fact were supported by substantial evidence, and 

whether constitutional rights were violated. Dep’t of Transp. v. Workers’ Comp. Appeal Bd. 

(Clippinger), 38 A.3d 1037 (Pa. Cmwlth. 2011).
5

whether the WCJ issued a reasoned decision. Therefore, Employer contends 

Claimant failed to preserve any other issues for review by this Court. We must reject 

this argument. The parties’ briefs before the Board are not part of the certified record 

in this appeal. Accordingly, we will not consider Employer’s waiver argument.

B. Reasonableness and Necessity of Acupuncture Treatments

An employer who disputes the reasonableness and necessity of a 

claimant’s medical treatment may submit the bills for a UR pursuant to Section 

306(f.1)(6) of the Workers’ Compensation Act.2 Bedford Somerset MHMR v. 

Workers’ Comp. Appeal Bd. (Turner), 51 A.3d 267 (Pa. Cmwlth. 2012). The 

claimant bears no burden of proof in the UR process. Id. Rather, the employer bears 

a never-shifting burden throughout the entire UR proceeding to show the disputed 

treatment is not reasonable and necessary. Id.

Under Pennsylvania law, treatment may be reasonable and necessary 

even if it is purely aimed at pain management and does not cure or permanently 

improve the claimant’s underlying condition. Trafalgar. Thus, a WCJ may not 

determine treatment to be unreasonable and unnecessary solely because the 

treatment is palliative in nature. Id.

Trafalgar and similar legal precedents support the reasonableness and 

necessity of treatments providing pain management benefits like those at issue here. 

In Trafalgar, this Court held that palliative treatments were reasonable and necessary

under Pennsylvania law, even though the relief lasted only a couple of days after 

 

2

 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §531(6).
6

each treatment. In Glick v. Workers’ Compensation Appeal Board (Concord 

Beverage Co.), 750 A.2d 919 (Pa. Cmwlth. 2000), this Court held a UR reviewer’s 

determination that pain relief was not lasting could not overcome the provider’s 

testimony that the treatment was necessary to alleviate the claimant’s pain 

symptoms. In Pennsylvania Turnpike Commission v. Workers’ Compensation 

Appeal Board (Collins), 709 A.2d 460 (Pa. Cmwlth. 1998), this Court concluded 

non-acupuncture dry-needle treatment was reasonable and necessary where it 

reduced the claimant’s pain and improved function. In Philadelphia Newspapers, 

Inc. v. Workers’ Compensation Appeal Board (Badame) (Pa. Cmwlth., No. 2273 

C.D. 2007, filed July 10, 2008), 2008 Pa. Commw. Unpub. LEXIS 330 (unreported), 

this Court affirmed the Board’s determination that palliative treatment was 

reasonable and necessary where the claimant credibly testified it gave him a little 

pain relief.3

Significantly, the temporary pain treatments at issue in these decisions

were reasonable and necessary even without any additional benefits, such as

allowing the claimants to avoid or cease using prescription narcotics. Here, 

Claimant’s Physician offered undisputed testimony that Claimant took opioid pain 

medications before he began treating with Claimant’s Physician, and that the pain 

relief provided by the acupuncture treatments allowed Claimant to avoid continuing 

to take opioids. 

 

3

 We cite Philadelphia Newspapers, Inc. v. Workers’ Compensation Appeal Board 

(Badame) (Pa. Cmwlth., No. 2273 C.D. 2007, filed July 10, 2008), 2008 Pa. Commw. Unpub. 

LEXIS 330 (unreported) as persuasive authority. See 210 Pa. Code §69.414(a).
7

This Court previously observed that opioids pose a greater risk than 

other treatments, and consideration of that risk is appropriate in assessing whether a 

pain treatment at issue is reasonable and necessary. Bedford Somerset MHMR. 

Further, in Samuels v. Workers’ Compensation Appeal Board (PeopleShare) (Pa. 

Cmwlth., No. 848 C.D. 2014, filed January 6, 2015), 2015 Pa. Commw. Unpub. 

LEXIS 20 (unreported), appeal denied, 117 A.3d 1282 (Pa. 2015), this Court implied

that a temporary reduction in pain would justify ongoing treatment, and reduction in 

use of opiates would justify ongoing use of an alternate treatment.

Moreover, the decisions cited by Employer are distinguishable. In 

Jackson v. Workers’ Compensation Appeal Board (Boeing), 825 A.2d 766 (Pa. 

Cmwlth. 2003), the UR reviewer determined continued chiropractic care was not 

reasonable or necessary because it was a disservice rather than a service for a soft 

tissue injury such as the claimant suffered, and because a home exercise program 

would be more beneficial. Here, there was no evidence of either circumstance.

In Howrie v. Workers’ Compensation Appeal Board (CMC Equipment 

Rental), 879 A.2d 820 (Pa Cmwlth. 2005), the treatment at issue was not reasonable 

and necessary because the WCJ found the claimant not credible in testifying that the 

treatment provided pain relief. Here, by contrast, there was no dispute that the 

acupuncture treatments reduced Claimant’s pain for at least one to two days each 

week, and helped keep his overall level of pain at bay.

Contrary to Employer’s argument, the Board did not reweigh the facts

in reversing the WCJ. Rather, the Board applied the appropriate legal standard to 
8

the undisputed facts. Based on those facts, the Board correctly determined that 

applicable law supports the reasonableness and necessity of the acupuncture 

treatments at issue. Accordingly, this Court concludes the Board properly reversed 

the WCJ’s decision.

IV. Conclusion

Based on the foregoing discussion, this Court affirms the order of the 

Board granting benefits.

 

ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

YMCA of Wilkes-Barre and HM :

Casualty Insurance Company, :

Petitioners :

: No. 1072 C.D. 2017

v. :

:

Workers’ Compensation Appeal :

Board (Kempka), :

Respondent :

O R D E R

AND NOW, this 5

th day of March, 2018, the order of the Workers’ 

Compensation Appeal Board is AFFIRMED.

 

ROBERT SIMPSON, Judge