IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joan M. Rotegliano, : CASES CONSOLIDATED

 Petitioner :

:

v. :

:

Clinton Hospital Corporation (Workers’ :

Compensation Appeal Board), : No. 616 C.D. 2021

Respondent :

:

:

Clinton Hospital Corp., :

 Petitioner :

:

v. :

:

Joan M. Rotegliano (Workers’ :

Compensation Appeal Board), : No. 628 C.D. 2021

Respondent : Submitted: January 21, 2022

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE FIZZANO CANNON FILED: May 12, 2022

Joan M. Rotegliano (Claimant) petitions for review from the May 19, 

2021, order of the Workers’ Compensation Appeal Board (Board), which affirmed 

the April 16, 2020, order of the Workers’ Compensation Judge (WCJ). The WCJ’s 

order granted a suspension petition filed by Clinton Hospital Corporation 

(Employer) based on Claimant’s failure to attend a scheduled independent medical 
2

examination (IME); granted Employer’s utilization review (UR) petition concerning 

Dr. Michael Greenberg’s prescription to Claimant of opioid pain medication; and 

ordered that Claimant undergo periodic testing to determine whether she resumes 

using opioid pain medication from a source other than Dr. Greenberg. Employer 

cross-petitions for review from the Board’s denial of Employer’s motion to quash 

Claimant’s appeal to the Board from the WCJ’s order. Upon review, we affirm.

I. Factual & Procedural Background

On April 12, 1993, Claimant sustained a work-related injury. WCJ Op., 

4/16/20, at 6; Reproduced Record (R.R.) “A.” Via a Notice of Compensation 

Payable, Employer accepted the injury, described as Herniated Nucleus Pulposus 

(HNP) at C5-6, and began paying wage loss and medical benefits, including payment

for cervical surgery several weeks after the incident. Id. In February 2015, the

current WCJ issued a decision expanding the description of Claimant’s injury to 

include aggravation or acceleration of degenerative changes at C4-5 and C6-7, nerve 

root encroachment and spinal cord compression at C4-5, and mildly increased 

narrowing at C5-6. Id. at 7. That decision also upheld a UR report finding 

Claimant’s prescriptions by Dr. Greenberg for opioids, including multiple daily 

doses of Percocet, Hydrocodone liquid, and Valium, to be reasonable and necessary. 

Id. 

On August 4, 2017, the WCJ issued a decision and order granting 

Employer’s petition for physical examination and ordering Claimant to undergo an 

IME with Dr. William Beutler, M.D. (Dr. Beutler) on August 10, 2017, at an address 

in Harrisburg. WCJ Op. at 8. On August 11, 2017, Employer filed a suspension 

petition based on Claimant’s failure to attend the scheduled IME. Id. at 5. Relevant 
3

to this appeal, the following petitions were also before the WCJ in this litigation: UR 

petitions filed by both sides in August 2017 concerning Claimant’s treatment with 

Dr. Greenberg, her longtime treating doctor for these injuries; Employer’s April 

2018 suspension petition asserting refusal of reasonable treatment (in-patient 

treatment for opioid dependency); and Employer’s April 2018 petition to review 

medical treatment (in-patient rehabilitation for opioid dependency).1 Id. at 5-6.

Claimant testified twice before the WCJ. WCJ Op. at 11-16. Claimant 

also submitted affidavits from herself and her caregiver-driver, stating that they did 

not have the correct address for the IME and had to try two different addresses before 

finding the correct location, but arriving too late because Dr. Beutler had left for the 

day. Id. at 33. Employer submitted the deposition testimony of Dr. Beutler, who 

was able to conduct an IME of Claimant in November 2017, and Dr. Michael R. 

Clark (Dr. Clark), who conducted a medical records review of Claimant’s medical 

treatment, specifically Dr. Greenberg’s continuing prescriptions for opioid pain 

medication. Id. at 16-32. Employer also presented the UR reviewer’s report finding 

Dr. Greenberg’s medical treatment partially reasonable and necessary, and 

surveillance video taken of Claimant. Id. at 8-10.

The WCJ issued his opinion on April 16, 2020. The WCJ granted 

Employer’s suspension petition upon concluding that Claimant had the correct

address for the IME, and therefore her failure to attend was due to her own fault. 

WCJ Op. at 36. The WCJ granted Employer’s UR petition concerning Dr. 

Greenberg’s medical care and denied Claimant’s UR petition also concerning Dr. 

Greenberg’s care upon determining that Dr. Greenberg’s treatment of Claimant was 

not reasonable and necessary, particularly as to the Hydrocodone liquid, Percocet, 

1 The WCJ’s decision addressed and resolved additional petitions and issues that have not 

been raised in this appeal by either side.
4

Valium, and office visits every twenty days for prescription refills and injections. 

Id. at 33-34 & 36. Finally, the WCJ sua sponte ordered Claimant to undergo drug 

testing for opioids every sixty days. Id. at 37. If a test returns a positive result, 

Employer may ask that Claimant enroll in an in-patient rehabilitation program run 

by Johns Hopkins, at Employer’s expense, and if Claimant refuses, Employer may 

seek immediate suspension of her benefits. Id. at 38.

The Board denied Employer’s motion to quash, which asserted that 

Claimant’s appeal waived all issues for lack of specificity in the notice of appeal,

but affirmed the WCJ’s opinion in full. The Board concluded that Claimant’s 

presentation was deficient, but the record was sufficient to allow it to conduct review 

limited to whether the WCJ’s determinations were supported by substantial evidence 

of record. Board Op., 5/19/21, at 1 & 6-7; R.R. “A.” Claimant appeals to this Court, 

challenging the lower tribunals’ merits determinations, and Employer appeals the 

Board’s denial of its motion to quash.2

II. Discussion

A. Board’s Denial of Employer’s Motion to Quash

Section 111.11 of the regulations related to the Pennsylvania Workers’ 

Compensation Act (Act)3states that an appeal of a WCJ’s determination to the Board 

shall be filed on a form provided by the Board and that 

2 On appeal, this Court’s scope of review is limited to determining whether constitutional 

rights were violated, whether an error of law was committed and whether necessary findings of 

fact were supported by substantial evidence. Morocho v. Workers’ Comp. Appeal Bd. (Home 

Equity Renovations, Inc.), 167 A.3d 855, 858 n.4 (Pa. Cmwlth. 2017). On questions of law, our 

scope of review is plenary, and our standard of review is de novo. Edwards v. Workers’ Comp. 

Appeal Bd. (Epicure Home Care, Inc.), 134 A.3d 1156, 1161 (Pa. Cmwlth. 2016).

3 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
5

[a]ll forms must contain the following information: . . . A 

statement of the particular grounds upon which the appeal 

is based, including reference to the specific findings of fact 

which are challenged and the errors of the law which are 

alleged. General allegations which do not specifically 

bring to the attention of the Board the issues decided are 

insufficient.

34 Pa. Code § 111.11(a)(2). 

In Jonathan Sheppard Stables v. Workers’ Compensation Appeal 

Board (Wyatt), 739 A.2d 1084 (Pa. Cmwlth. 1999), the employer’s appeal used the 

Board’s standard form and language and enumerated the findings of fact in the 

WCJ’s decision being appealed and stated that they were not supported by 

substantial evidence. Id. at 1088. The appeal also enumerated conclusions of law 

in the WCJ’s decision (“2-10”), after using the standard language on the appeal form: 

“I hereby appeal from the decision of [the WCJ] and specify the following errors of 

law committed by the said [WCJ], and the reasons why the decision does not 

conform to the provisions of the [Act].” Id. (emphasis added). Notably, while the 

employer enumerated the conclusions it sought to challenge, it did not take the 

further step of specifying the reasons why the decision violated the Act. Id.

Despite having failed to specify to the Board its legal reasons in its 

appeal documentation, the employer in Jonathan Sheppard Stables briefed and 

argued several particularly alleged legal errors by the WCJ, including whether the 

claimant was in the course and scope of employment when injured and whether the 

WCJ correctly awarded disfigurement benefits. Id. It is not clear whether the Board 

addressed the employer’s legal issues. Id. at 1087. When the employer subsequently 

appealed to this Court, however, we found employer’s legal issues waived for 

purposes of appeal: 
6

Employer utterly failed to raise any of the foregoing 

claims of error with any degree of specificity in its appeal 

to the Board. . . . [I]n specifying the errors of law 

committed by the WCJ and the reasons why his decision 

does not conform to the provisions of the Act, Employer 

merely stated “2-10” on the appeal form to the Board. It 

is unclear as to what “2-10” is meant to convey as a basis 

for the appeal to the Board, and such a cryptic assertion 

clearly does not specify the errors of law committed by the 

WCJ or why his decision does not conform to the 

provisions of the Act.

Id. at 1089 & n.5. We did not, however, find the employer had waived its assertions

that the WCJ’s factual determinations were not supported by substantial evidence, 

and we affirmed on those grounds. Id. at 1089-91. 

Likewise, in Matticks v. Workers’ Compensation Appeal Board

(Thomas J. O’Hara Co., Inc.), 872 A.2d 196 (Pa. Cmwlth. 2005), we stated:

Here, Employer followed the identical appeal process 

utilized by the employer in Jonathan Sheppard Stables. 

Employer’s appeal form simply listed WCJ Spizer's 

findings of fact (Nos. 3-19) that allegedly were not 

supported by substantial competent evidence and listed the 

WCJ’s conclusions of law (Nos. 2-5) that allegedly 

contained errors of law. . . . Based on Jonathan Sheppard 

Stables, the Court is compelled to agree with Claimant that 

Employer effectively waived its [legal] arguments . . .

because Employer failed to properly preserve those issues 

in its appeal.

Id. at 202; see also Steglik v. Workers’ Comp. Appeal Bd. (Delta Gulf Corp.), 755 

A.2d 69, 74 (Pa. Cmwlth. 2000) (holding that merely listing conclusion of law by 

number is insufficient to preserve legal issue for appeal).

Recently, in W&W Contractors, Inc. v. Workers’ Compensation Appeal 

Board (Holmes) (Pa. Cmwlth., No. 836 C.D. 2020, filed June 28, 2021), 2021 WL 
7

2644493 (unreported),

4

the employer argued that all it needed to preserve a legal 

challenge to the WCJ’s award of attorneys’ fees to the claimant was to list the 

corresponding finding of fact and conclusion of law in its appeal to the Board, and 

that any explanation of why these were being challenged was not necessary. W&W 

Contractors, slip op. at 11-12, 2021 WL 2644493, at *5. Relying on Jonathan 

Sheppard Stables, we held that simply listing the challenged conclusion of law was 

insufficient to preserve the specific legal issue and it was therefore waived on appeal. 

Id. at 15-16, 2021 WL 2644493, at *7. In this regard, a party’s failure to appeal an 

issue with the requisite specificity cannot be cured by addressing the issue in its 

brief. McGaffin v. Workers’ Comp. Appeal Bd. (Manatron, Inc.), 903 A.2d 94, 102 

(Pa. Cmwlth. 2006); see also Matticks, 872 A.2d at 202.

As these cases illustrate, an appeal to the Board that enumerates a 

WCJ’s challenged findings of fact and asserts that they are not supported by 

substantial evidence will be sufficient to preserve those issues. However, to the 

extent a party seeks to raise legal issues to the Board but only lists the challenged 

conclusions of law without also specifying the legal basis for appeal in its 

documentation, those claims will be deemed waived. 

Here, Claimant’s appeal to the Board states that numerous findings of 

fact, primarily pertaining to Claimant’s and Employer’s medical experts’ testimony 

and to the WCJ’s related credibility determinations, were not supported by 

substantial evidence. Certified Record (C.R.) at 105. Pursuant to Jonathan 

Sheppard Stables, these record-based factual challenges were sufficiently preserved 

for appeal. 739 A.2d at 1089-91. 

4 Unreported decisions of this Court issued after January 15, 2008, may be cited as 

persuasive authority pursuant to Section 414(a) of the Commonwealth Court’s Internal Operating 

Procedures, 210 Pa. Code § 69.414(a).
8

Claimant also enumerated the WCJ’s unfavorable conclusions of law 

for appeal, but she did not specify the nature of her legal issues or explain why the

listed conclusions amounted to legal error. C.R. at 105. This was insufficient, as 

discussed in the cases above. Matticks, 872 A.2d at 202; Steglik, 755 A.2d at 74; 

Jonathan Sheppard Stables, 739 A.2d at 1089 & n.5; see also W&W Contractors, 

slip op. at 15-16, 2021 WL 2644493, at *7. We therefore conclude that the Board 

did not err in denying Employer’s motion to quash, but limiting its review to whether 

the WCJ’s determinations were supported by substantial evidence. Board’s Op. at 

7. As such, we proceed to the merits on the same basis of review.

B. Claimant’s Non-Attendance at IME

The primary role of the WCJ in workers’ compensation matters is well 

settled:

The WCJ is the fact finder, and it is solely for the WCJ

. . . to assess credibility and to resolve conflicts in the 

evidence. Neither the Board nor this Court may reweigh 

the evidence or the WCJ’s credibility determinations. In 

addition, it is solely for the WCJ, as the factfinder, to 

determine what weight to give to any evidence. . . . As 

such, the WCJ may reject the testimony of any witness in 

whole or in part, even if that testimony is uncontradicted.

Hawbaker v. Workers’ Comp. Appeal Bd. (Kriner’s Quality Roofing Servs. & 

Uninsured Emp. Guar. Fund), 159 A.3d 61, 69 (Pa. Cmwlth. 2017) (internal 

citations, quotations, and brackets omitted). “Determining the credibility of the 

witnesses is the quintessential function of the fact finder . . . . It is not an exact 

science, and the ultimate conclusion comprises far more than a tally sheet of its 

various components.” Dorsey v. Workers’ Comp. Appeal Bd. (Crossing Constr. 
9

Co.), 893 A.2d 191, 195-96 (Pa. Cmwlth. 2006) (declining to “dissect and analyze 

each of the WCJ’s reasons for his credibility determination”). 

“Substantial evidence” is such relevant evidence as a reasonable 

person might accept as adequate to support a conclusion. See Waldameer Park, Inc. 

v. Workers’ Comp. Appeal Bd. (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003). 

In performing a substantial evidence analysis, we view the evidence in a light most 

favorable to the party that prevailed before the WCJ. Id. In a substantial evidence 

analysis where both parties present evidence, it is immaterial that there is evidence 

in the record supporting a factual finding contrary to that made by the WCJ; rather, 

the pertinent inquiry is whether there is any evidence that supports the WCJ’s factual 

finding. Id. Mere speculation or conjecture is insufficient to support a factual 

finding, but where there exists the ability to draw reasonable and logical inferences 

from evidence that is presented, including testimony, a conclusion so derived will 

be sufficient, even if it may not be the only possible conclusion. W. Penn Allegheny 

Health Sys., Inc. v. Workers’ Comp. Appeal Bd. (Cochenour), 251 A.3d 467, 475 

(Pa. Cmwlth. 2021) (citing Fitzpatrick v. Natter, 961 A.2d 1229, 1241-42 (Pa. 

2008)).

Section 314 of the Act requires an injured employee to submit to an 

IME paid for by the employer, including reasonable traveling expenses; an employer 

may secure a WCJ’s order compelling the claimant to attend. 77 P.S. § 651. Failure 

to appear for an IME without a reasonable excuse, which is the claimant’s burden to 

establish, will result in suspension of the claimant’s wage loss benefits until an IME

can occur. Id. As the factfinder, the WCJ decides whether a claimant’s excuse for 

non-attendance is reasonable, and we will not disturb that conclusion absent an abuse 
10

of discretion. Wolfe v. Workmen’s Comp. Appeal Bd. (Edgewater Steel Co.), 636 

A.2d 1293, 1298 (Pa. Cmwlth. 1994).

Claimant avers that her actions the day of the scheduled IME should 

have been viewed by the WCJ as a good faith effort and a reasonable excuse for 

failing to attend the IME. Claimant’s Br. at 16-18. Employer responds that the 

WCJ’s refusal to do so was supported by substantial evidence of record. Employer’s 

Br. at 17-18.

The record supports the WCJ’s determination that Claimant did not 

provide a reasonable excuse for her failure to attend the IME. Claimant’s affidavit 

stated that her attorney’s office gave her an address in Lemoyne and her caregiverdriver Shannon Fields printed directions to that address. C.R. at 441. They arrived 

on time for the scheduled IME but were told they were not in the system for an 

appointment. Id. at 442. They were given another address for Dr. Beutler in 

Mechanicsburg, which was also incorrect. Id. They were finally given the correct 

address in Harrisburg, but by the time they arrived, nearly three hours after the 

appointment time, Dr. Beutler had left for the day. Id. They tried calling Claimant’s 

counsel several times but were unsuccessful. Id. Ms. Fields provided an affidavit 

with similar assertions. Id. at 465-67. 

The record also includes an affidavit from Employer’s IME vendor 

(IMX) stating that an appointment letter with the correct Harrisburg address (which 

is also of record) was sent to Claimant and her counsel and the address was 

confirmed with counsel’s office prior to the IME date; the affidavit adds that IMX

does not conduct IMEs in Lemoyne or Mechanicsburg. Id. at 551-54. At a 

September 11, 2017, hearing, Claimant’s counsel acknowledged on the record that 
11

the WCJ’s order and the IMX letter gave the correct address to Claimant before the 

date of the IME. C.R. at 212-14. 

The WCJ concluded that Claimant failed to establish that her excuse 

for non-attendance was reasonable:

The WCJ’s 8/4/17 decision directing Claimant to attend 

the IME with Dr. Beutler clearly identified the time, place, 

and address of the IME. The WCJ decision was sent to 

and received by Claimant and her counsel. The 5/25/17 

IMX scheduling letter that was sent to Claimant and her 

counsel set forth the time, place, and address of the IME. 

The WCJ decision gave Claimant the opportunity to have 

[Employer] provide transportation to and from the IME. 

Claimant chose not to avail herself of this opportunity to 

have travel provided to her and Claimant assumed 

personal responsibility for attending the IME. The WCJ 

finds that fully adequate notice of the time, place, and 

address of the IME and the opportunity to have 

[Employer] provide transportation to attend the IME were 

given to Claimant and Claimant failed in her responsibility 

to attend the IME through her own fault.

WCJ Op. at 33; R.R. “A.”

Claimant does not dispute that the WCJ’s IME order and IMX’s letter 

advised both her and her counsel of the correct address or that she had the 

opportunity for Employer to transport her to the IME but chose instead to be 

personally responsible for her attendance. Therefore, the WCJ’s conclusion that 

Claimant did not provide a reasonable excuse for her non-attendance and to suspend

her wage loss benefits until she attended an IME on November 30, 2017, is supported 

by substantial evidence of record. The WCJ, therefore, did not abuse his discretion 

in so holding, and the Board did not err in affirming on this issue.

C. Claimant’s Access to Opioid Pain Medication
12

Pursuant to Section 306 of the Act, the employer bears the burden in 

UR proceedings to establish the reasonableness and necessity of an injured worker’s 

medical treatment. 77 P.S. § 531(6); Topps Chewing Gum v. Workers’ Comp. 

Appeal Bd. (Wickizer), 710 A.2d 1256, 1258 (Pa. Cmwlth. 1998). Either party may 

request review, which is conducted by a medical professional in the same field as 

that of the provider under review. 77 P.S. § 531(6)(i). The reviewer issues a report 

which may then be appealed to the WCJ, who considers the report but is not bound 

by it. 34 Pa. Code § 127.556. Treatment may be reasonable and necessary even if 

it provides solely palliative relief and does not cure the underlying injury. Ryndycz 

v. Workers’ Comp. Appeal Bd. (White Eng’g), 936 A.2d 146, 151-52 & n.4 (Pa. 

Cmwlth. 2007). However, the WCJ may find palliative treatment unreasonable and 

unnecessary where it is shown to be of little value due to the passage of time or other 

considerations. Howrie v. Workers’ Comp. Appeal Bd. (CMC Equip. Rental), 879 

A.2d 820, 822-23 (Pa. Cmwlth. 2005).

In Fanning v. Workers’ Compensation Appeal Board (Lower Merion 

School District) (Pa. Cmwlth., No. 992 C.D. 2018, filed May 2, 2019), 2019 WL 

2400487 (unreported), the WCJ found the claimant’s ongoing use of opioids for pain 

unreasonable and unnecessary. Id., slip op. at 10, 2019 WL 2400487, at *4. We 

affirmed, noting:

Given the change in the way these medications are being 

used in the medical community, as reflected in Dr. Pharo’s 

observation of the current American Medical Association 

guidelines for those medications, and Dr. Cicuto’s 

indication that there has “been a significant change in the 

use of opioids in chronic pain management,” it is not 

unreasonable for an employer to question the ongoing, 

long term prescription of opioids to claimants. As we 

stated in Troutman [v. Workers’ Compensation Appeal 

Board (Norristown Ford) (Pa. Cmwlth., No. 724 C.D. 
13

2014, filed April 10, 2015), 2015 WL 5436751 

(unreported)], “it [is] not unreasonable for [the employer] 

to have questioned the ongoing utility of the treatments, as 

[the employer] would ultimately be liable for any potential 

negative consequences that could occur.” 

Id., slip op. at 16-17, 2019 WL 2400487, at *9. Likewise, in Bedford Somerset 

MHMR v. Workers’ Compensation Appeal Board (Turner), 51 A.3d 267 (Pa. 

Cmwlth. 2012), we affirmed the WCJ’s determination that the claimant’s ongoing 

use of opioids was neither reasonable nor necessary because the physical and 

psychological risks of opioids, given their highly addictive nature, outweighed the 

palliative benefits the claimant received from them. Id. at 274-75 (citing Sweigart 

v. Workers’ Comp. Appeal Bd. (Burnham Corp.), 920 A.2d 962 (Pa. Cmwlth. 2007)). 

If, however, a claimant can present rebuttal medical evidence that ongoing opioid 

treatment is reasonable and necessary, the treatment may be upheld so long as the 

record evidence supports that conclusion. Loc, Inc. v. Workers’ Comp. Appeal Bd.

(Graham), 936 A.2d 1213, 1216 (Pa. Cmwlth. 2007) (noting WCJ’s conclusion that

the claimant’s treating doctor, who prescribed the opioids, was credible and in the

best position to monitor the claimant’s condition and any ongoing effects).

Here, Claimant argues that the WCJ’s determination that Dr. 

Greenberg’s treatment was not reasonable or necessary, which resulted in Employer 

no longer having to pay for Claimant’s opioid prescriptions, was not supported by 

substantial evidence and that a more reasonable disposition would have been to craft 

an order enabling Claimant to wean off her medications. Claimant’s Br. at 19-20. 

Employer responds that the WCJ’s decision was based on reasonable credibility 

determinations in favor of Employer’s medical experts, Dr. Beutler and Dr. Clark, 

who testified that Claimant should no longer be on opioids and recommended an inpatient rehabilitation program at Employer’s expense. Employer’s Br. at 19-24.
14

The record includes the UR report upon which Employer based its 

petition, which concluded that Dr. Greenberg’s treatment was partially reasonable 

and necessary as of May 24, 2017, and ongoing. C.R. at 537-40. The report would 

approve Claimant’s ongoing daily use of Percocet or Valium, but not both, because 

they are dangerous in combination. Id. The report would not approve her ongoing 

daily use of Hydrocodone liquid because it is also risky in combination with 

Claimant’s other medications. Id. 

Claimant testified on November 9, 2017, before the WCJ. She took

two Percocet every four hours for pain and had been on it since 1994-95. C.R. at 

258, 275 & 292. She also took a Hydrocodone liquid. Id. She took Valium as 

needed for tremors and muscle relaxation. Id. at 264 & 274. Without her 

medications, she believed she would sustain severe pain, swelling, and 

inflammation. Id. at 259. 

Claimant testified before the WCJ again on December 21, 2018. She 

stated she felt worse than when she testified the previous year. C.R. at 372. She 

acknowledged that surveillance video taken by Employer made her look functional

but explained that the bags she is seen carrying in the video were just bottled drinks 

and tissues that she needed to carry in bags because her hands were weak. Id. at 

373-74. Dr. Greenberg, whom she had been seeing for years, sold his practice in 

late 2017 (he died shortly thereafter) and Claimant claimed that her new doctors 

declined to continue her prescriptions because Employer refused to pay for them. 

Id. at 380-83 & 414. She had not been able to take either Percocet or Hydrocodone

since December 2017. Id. She denied drug-seeking behavior, misuse of her 

medications, insurance fraud, and personal conduct that led her new doctors to 

discharge her from their care. Id. at 387-88, 394, 401 & 404. 
15

Claimant stated that she went to the emergency room (ER) in February 

2018 due to reactions from not having regular access to her opioid medications since 

December 2017. C.R. at 391. She acknowledged, however, that she tested positive 

for opioids at that time and explained that she still had medications left over after 

her last prescription was filled in December 2017. Id. at 399-400. She went to the 

ER again for similar reasons in March 2018 and told doctors that she was not on any 

medication at that time; however, she acknowledged a positive test for Oxycodone

at that visit. Id. at 400-03 & 413-14. She denied that she is addicted to opioids, that 

her family asked her to go to a drug rehabilitation program, or that she was advised 

by doctors during a subsequent June 2018 hospitalization to enter a program. Id. at 

411-13. She maintains she is not currently on opioids. Id. at 417.

Dr. Beutler testified in a deposition that he is a board-certified 

neurosurgeon. C.R. at 565. He saw Claimant for an IME on November 30, 2017, 

after the August 2017 IME did not occur. Id. at 569. Claimant presented with 

persistent neck pain, numbness, and pressure ranging from her head to her shoulders 

since the 1993 injury. Id. at 571-72. She described bilateral upper extremity and 

hand pain and weakness but no radicular or radiating symptoms. Id. at 572. 

Dr. Beutler stated that during the IME, he observed what he believed to 

be symptom magnification in that she reported dramatic pain, weakness, and 

sensitivity in her arms and shoulders, but had no difficulty getting into her coat after 

the IME using similar movements as he asked of her during the IME. Id. at 580-81. 

Her responses during the sensory part of the IME were also anatomically 

inconsistent with her accepted injuries. Id. at 581-83. He noted that her reflexes 

were normal and that he detected no muscle spasms, both of which are objective

signs that a patient cannot manipulate. Id. at 583-84. Her reported condition and 
16

reactions during the IME also did not correlate with her most recent diagnostic 

imaging results. Id. at 588-89. Likewise, he viewed her surveillance video and 

found her largely functional on it, including using her neck and shoulders to hold 

her cell phone, which was inconsistent with her subjective reactions during the IME. 

Id. at 597-99.

Dr. Beutler did not believe that Claimant was fully recovered from her 

work-related injuries, but nonetheless opined that the opioids she had been taking 

since the mid-1990s are no longer reasonable and necessary for her in light of current 

views that long-term use of narcotic pain medication is a source of physical and 

psychological dependence. C.R. at 590-92. His review of her medical records also 

indicated instances of drug-seeking behavior, including threatening her doctors with 

lawsuits if they did not fill her prescriptions. Id. at 593-94. Dr. Beutler 

recommended that Claimant enter an in-patient program to wean her off opioid 

medications and replace them with non-narcotic medications and other therapies for 

pain management. Id. at 605.

Dr. Clark testified in a deposition. He is currently Chair of the 

Department of Psychiatry and Behavioral Health at Inova Fairfax Medical Center in 

Virginia and until recently served in a similar position at Johns Hopkins, where he 

was director of the in-patient drug rehabilitation and pain management program. 

C.R. at 654-55 & 660-61. He is board certified in psychiatry and licensed in 

Maryland and Virginia, but not Pennsylvania. Id. at 655-56. On Employer’s request, 

he reviewed Claimant’s medical records and prepared a report. Id. at 662.

Dr. Clark concluded that while he agreed with Claimant’s current 

diagnosis, none of Claimant’s current treatments, particularly extensive narcotic 

medications, were reasonable and necessary and that she would be a good candidate 
17

for an in-patient program like the one at Johns Hopkins. C.R. at 666-67 & 681-84. 

Like Dr. Beutler, Dr. Clark spoke of the evolution in perceptions regarding narcotic 

medications since the 1990s and the current view that long-term use of opioids 

presents great physical and psychological risks of dependence and addiction. Id. at 

668-72. Based on his view of her surveillance video, he believed she is functional 

and might be taking her medications at this point for the wrong reasons, although he 

acknowledged that when she was filmed, she may have recently taken her 

medication and therefore was more functional than she might have been without it. 

Id. at 672 & 687-90. An in-patient program would have team-directed care for her 

drug rehabilitation and pain management, including condition-specific physical 

therapy, and would be more beneficial than merely stopping her medications without 

the support of an in-patient program. Id. at 674-80 & 695.

In response to Employer’s medical evidence, Claimant attempted to 

submit transcripts of Dr. Greenberg’s 2014 and 2015 depositions in prior UR 

litigation since Dr. Greenberg was no longer alive to testify. C.R. at 361-62. 

Another former treating doctor had relocated out of state and was also unavailable 

to testify. Id. at 362. Upon Employer’s objection, the WCJ declined to allow the 

transcripts in except for purposes of appeal by Claimant. Id. at 364. Claimant did 

not appeal the WCJ’s evidentiary ruling to the Board; therefore, the record contains 

no rebuttal medical evidence on Claimant’s behalf. 

The WCJ found Dr. Beutler and Dr. Clark, who both testified that 

Claimant should be taken off all opioids, credible in light of their backgrounds in 

neurosurgery and pain management. WCJ Op. at 33. The WCJ also credited Dr. 

Beutler and Dr. Clark over the UR reviewer, who would have approved ongoing use 

of Percocet or Valium, but not both, because their credentials outweigh those of the 
18

reviewer, who was certified in family practice.5 Id. The WCJ therefore found 

Employer had met its UR burden of proof and found Claimant’s ongoing use of 

opioids neither reasonable nor necessary. Id. & WCJ Order.

We agree. As finder of fact, the WCJ is tasked with the primary roles 

of determining the credibility of witnesses and weighing the evidence, neither of 

which this Court may usurp. See Hawbaker, 159 A.3d at 61. Here, moreover, all 

three medical witnesses concluded that Claimant’s ongoing use of opioids was not 

beneficial for her – even the UR reviewer, who would have curtailed rather than 

eliminated Claimant’s opioid use. Dr. Beutler and Dr. Clark both explained the 

evolution since the 1990s when opioids entered wide distribution to the current view 

that their long-term use creates risks of dependence and addiction that far outweigh 

their palliative benefits. C.R. at 590-92 & 668-72. Claimant’s argument that the 

WCJ erred by denying payment for Claimant’s medications without giving her the 

opportunity to be weaned off them is also refuted by the record, in that Dr. Beutler 

and Dr. Clark both recommended that Claimant enter an in-patient program for 

opioid rehabilitation and pain management, which would be paid for by Employer. 

Id. at 605-07 & 675-78. At any rate, the standard of review is whether a factfinder’s 

determination is supported by substantial evidence of record, not whether another 

conclusion could also have been made. Waldameer Park, 819 A.2d at 168. Because 

the WCJ’s determination that Claimant’s ongoing use of opioids is no longer 

reasonable or necessary is supported by substantial evidence of record, the WCJ did 

not abuse his discretion in so holding, and the Board did not err in affirming on this 

issue.

5 As noted, the UR reviewer must practice in the same field of medicine as that of the 

provider under review. 77 P.S. § 531(6)(i). As Dr. Greenberg was a family practice doctor, the 

reviewer was therefore appropriate for UR purposes.
19

D. WCJ’s Order Requiring Drug Testing

Section 314 of the Act authorizes a WCJ to order a claimant to undergo 

a “physical examination,” which may include an IME or non-invasive diagnostic 

testing. 77 P.S. § 651; Coleman v. Workers’ Comp. Appeal Bd. (Indiana Hosp.), 

842 A.2d 349, 354-56 (Pa. 2002). After an initial examination, “upon petition of the 

employer,” the WCJ may “order the employe to submit himself to such further 

physical examinations or expert interviews as the [WCJ] shall deem reasonable and 

necessary, at such times and places and by such health care provider or other expert 

as the [WCJ] may designate[.]”

6

 77 P.S. § 651. 

Drug screening in the UR context is usually aligned with and approved 

for a claimant’s ongoing use of opioids to ensure that the claimant is using them 

properly and subject to medical supervision. Rogele, Inc. v. Workers’ Comp. Appeal 

Bd. (Hall), 198 A.3d 1195, 1202 (Pa. Cmwlth. 2018). Here, however, the UR report 

6 The usual vehicle for an employer to seek an examination is a petition to compel. Here, 

however, Employer did not seek or ask the WCJ to order drug testing of Claimant. Instead, 

Employer’s goal was to convince the WCJ to order Claimant to enter an in-patient program to 

wean off opioids. As such, Employer filed a petition to suspend benefits based on Claimant’s 

alleged refusal to undergo such a program, and a petition to review medical treatment, which is 

generally filed when an employer seeks to challenge whether treatment is causally related to the 

work-related injury. Bloom v. Workmen’s Comp. Appeal Bd. (Keystone Pretzel Bakery), 677 A.2d 

1314, 1317-18 (Pa. Cmwlth. 1996).

However, strict pleading is not required in workers’ compensation and a WCJ may 

generally award such relief as is supported by evidence so long as the affected party is not taken 

by surprise or prejudiced by the nature of the remedy. See Frontini v. Workers’ Comp. Appeal Bd. 

(Parks Moving & Storage), 702 A.2d 8, 12-13 (Pa. Cmwlth. 1997) (termination of benefits upheld 

where claimant knew employer intended to contest duration of injury even though employer did 

not file a termination petition). Here, Claimant does not argue that she was caught off guard or 

prejudiced by the WCJ’s order that she undergo periodic testing. Therefore, if the record evidence 

supports the disposition, the WCJ did not abuse his discretion in construing Employer’s petitions 

as a petition to compel periodic drug screening. See WCJ Op. at 37.
20

does not indicate that Dr. Greenberg was conducting routine opioid testing of 

Claimant as part of her treatment regimen; and the question of whether a WCJ may 

order drug testing outside of an approved medical treatment plan using opioid

medication, apparently solely for the purpose of monitoring whether the claimant 

seeks opioids from another health care provider or source, appears to be one of first 

impression. See C.R. at 530-42. However, to the extent a claimant can be weaned 

off opioids and increase his or her prospects for a return to more normal functioning 

and perhaps some ability to again be employed, an in-patient program has been 

found reasonable treatment such that its refusal may be the basis for suspension of 

benefits. See Bereznicki v. Workers’ Comp. Appeal Bd. (Eat ‘N Park Hosp. Grp.), 

989 A.2d 46, 48 (Pa. Cmwlth. 2009) (affirming WCJ’s suspension of benefits when 

claimant refused to undergo detoxification program).

Claimant argues that since the WCJ effectively terminated her access 

to opioids by granting Employer’s UR petition concerning Dr. Greenberg’s 

treatment, the WCJ’s order that she submit to drug testing is irrelevant and 

unreasonably intrusive. Claimant’s Br. at 21-22. Employer responds that in light of 

record evidence that Claimant has shown drug-seeking behavior and tested positive 

for opioids even after she stated she was no longer taking them, the WCJ’s order of 

regular screening was within his discretion and supported by the record. Employer’s 

Br. at 24-26. Employer adds that even though it may no longer be paying for 

Claimant’s opioid prescriptions from Dr. Greenberg, drug screening to ensure that 

Claimant remains off opioids is in Claimant’s best interests, given the high risks of 

ongoing use. Id. at 26.

Claimant’s argument that the WCJ’s order of ongoing drug testing is 

irrelevant and unreasonable is essentially legal in nature, although dependent on the 
21

facts as found by the WCJ. As noted above, however, Claimant failed to set out and 

preserve this specific legal argument to the Board beyond listing the corresponding 

conclusion of law in the WCJ’s decision. See C.R. at 105. Therefore, to the extent 

Claimant asks this Court to review this aspect of the WCJ’s determinations as a 

matter of law, any such issues are waived for purposes of this appeal. See McGaffin, 

903 A.2d at 101-02; Matticks, 872 A.2d at 201-02; Jonathan Sheppard Stables, 739 

A.2d at 1089-91. Our review is therefore limited to whether the WCJ’s drug testing 

order is supported by substantial evidence of record. 

Claimant testified in December 2018 that she was no longer on opioids 

since she could not get prescriptions from her new doctors; she denied abusing them, 

being addicted to them, or exhibiting drug-seeking behavior. C.R. at 380-82, 388, 

401, 411, 413 & 417. She acknowledged, however, that she had tested positive for 

opioids at ER visits post-dating the time when she could no longer get opioids from 

Dr. Greenberg. Id. at 399 & 413. She denied being asked or refusing to go to an inpatient rehabilitation program. Id. at 403 & 411-12. Dr. Beutler testified that the 

current standard of care does not support Claimant’s extensive daily use of multiple 

opioid medications due to their physical and psychological addiction risks; he stated 

that getting Claimant off of opioids is the “number one thing that has to be pursued, 

if she’s going to maintain any degree of health[.]” Id. at 590-93. His review of 

Claimant’s records revealed instances of drug-seeking behavior in which she 

threatened doctors with litigation if they did not continue prescribing her opioids. 

Id. at 594. He recommended an in-patient program for rehabilitation and non-opioid 

pain management. Id. at 603-07. 

Like Dr. Beutler, Dr. Clark stated that based on his experience in pain 

management, the evolving standard of care for use of opioids, and his review of 
22

Claimant’s records, she is a typical candidate for a comprehensive in-patient 

program like the one he supervised at Johns Hopkins; these programs have low risks 

and proven health benefits. C.R. at 667-68 & 677-80. He found it likely “that she 

is taking these medicines for, potentially, the wrong reasons and not getting the kind 

of benefit that you would expect her to get, and that she really should be tapered off 

of them.” Id. at 672. Dr. Beutler and Dr. Clark both believed that Claimant needs 

to be off opioids altogether and did not agree with the UR reviewer that Claimant 

could continue on either Percocet or Valium, but not both. Id. at 602 & 684.

After the close of evidence, the WCJ concluded that an in-patient 

program as recommended by Dr. Beutler and Dr. Clark would be reasonable

compared with continued use by Claimant of opioids in the same amounts she had 

been taking for years. WCJ Op. at 35 & 37. The WCJ gave some credit to 

Claimant’s testimony in December 2018 that she had not been able to get opioids in 

the same volume after late 2017, when Dr. Greenberg no longer was available to 

prescribe them for her. Id. However, based on Claimant’s positive test for opioids 

in March 2018 after she stated she was no longer able to get them from a treating 

doctor, the WCJ concluded that Claimant’s December 2018 testimony that she was 

completely free of opioids was not fully credible. Id.

Given the WCJ’s conclusion that Claimant was possibly still on opioids 

in 2018, albeit less than before, the WCJ declined to suspend her wage loss benefits 

for not entering an in-patient program “at this time.”7 WCJ Op. at 37. However, the 

WCJ credited the opinions of Dr. Beutler and Dr. Clark and determined that to leave 

Claimant in a position where she might be able to access and use opioids from 

7 Had the WCJ decided to suspend Claimant’s ongoing wage loss benefits based on a 

finding that she refused the reasonable treatment of an in-patient program, this Court has affirmed 

such determinations in the past. See Bereznicki, 989 A.2d at 48. 
23

another provider or source8 posed health risks, including mortality. Id. at 35-37. 

Therefore, to ensure Claimant did not resume her daily use of large amounts of 

opioids, the WCJ concluded that drug testing every sixty days at Employer’s expense

was warranted, and if Claimant returns a positive test, Employer may ask Claimant 

to enter an in-patient program and seek immediate suspension of her benefits if she

refuses. Id. at 38. As noted, the WCJ stated that he was treating Employer’s 

suspension and medical review petitions as a petition to compel drug testing pursuant 

to Section 314 of the Act. Id. at 37. 

Here, the WCJ considered Claimant’s in-person testimony and deduced 

that while she had already undergone withdrawal due to lack of consistent access to 

prescriptions, her subsequent positive tests indicated limits to her credibility on the 

issue of her opioid usage. The testimony of Dr. Beutler and Dr. Clark highlighted 

the need for Claimant to be off opioids, preferably but not necessarily through an inperson program. The WCJ’s order provides a means to accomplish that goal and is 

supported by the record evidence. We therefore find the WCJ did not abuse his 

discretion in so holding and the Board did not err in affirming on this issue.9

8 UR is specific to the provider under review and not the treatment. Therefore, were 

Claimant to find another provider willing to prescribe opioids, Employer would not be able to rely 

on the UR concerning Dr. Greenberg to contest Claimant’s ongoing use of such medications. 

Schenck v. Workers’ Comp. Appeal Bd. (Ford Elec.), 937 A.2d 1156, 1161-62 (Pa. Cmwlth. 2007).

9 Although Claimant waived her legal argument asserting that the WCJ’s order is 

unreasonable by failing to specify it in her appeal documentation, any such argument is meritless. 

The WCJ’s sua sponte ordering of periodic drug testing as a condition of continued benefits is a 

considered compromise between the drastic approach of ordering Claimant directly to an in-patient 

rehabilitation program on pain of losing her benefits and the unwelcome option of allowing her to 

resume her longtime extensive opioid use if she finds a provider willing to do so. In that sense, 

although the WCJ’s order is not specifically authorized by the Act, it is an equitable remedy of the 

kind this Court has found may be applied in workers’ compensation matters. See Kiebler v. 

Workers’ Comp. Appeal Bd. (Specialty Tire of Am.), 738 A.2d 510, 516 (Pa. Cmwlth. 1999) (“We 

similarly sanctioned the use of equitable remedies and defenses in workers’ compensation 
24

III. Conclusion

Based on the facts and evidence in this case, we affirm the WCJ’s 

decision and order. 

__________________________________

CHRISTINE FIZZANO CANNON, Judge

proceedings, despite the absence of any provision in the Act specifically authorizing such a 

remedy, in [Roadway Express, Inc. v. Workmen’s Compensation Appeal Board (Allen), 618 A.2d 

1224 (Pa. Cmwlth. 1992)] (doctrine of laches applies in workers’ compensation proceedings[.]”)).

 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joan M. Rotegliano, : CASES CONSOLIDATED

 Petitioner :

:

v. :

:

Clinton Hospital Corporation (Workers’ :

Compensation Appeal Board), : No. 616 C.D. 2021

Respondent :

:

:

Clinton Hospital Corp., :

 Petitioner :

:

v. :

:

Joan M. Rotegliano (Workers’ :

Compensation Appeal Board), : No. 628 C.D. 2021

Respondent :

O R D E R

AND NOW, this 12th day of May, 2022, the May 19, 2021, decision and 

order of the Workers’ Compensation Judge is AFFIRMED.

__________________________________

CHRISTINE FIZZANO CANNON, Judge