IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Constantine Mitoulis, :

: Petitioner :

:

v. : No. 991 C.D. 2018

: Argued: June 5, 2019 Workers’ Compensation Appeal : Board (Sunrise Senior Living : Management, Inc.), :

: Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE ELLEN CEISLER, Judge

OPINION N OT REPORTED

MEMORANDUM OPINION BY JUDGE WOJCIK FILED: April 27, 2020

Constantine Mitoulis (Claimant) petitions for review of the June 2 0,

2018 order of the Workers’ Compensation Appeal Board (Board), which affirm ed

the order of a workers’ compensation judge ( WCJ ) granting , in part, th e termination petition filed by Sunrise Senior Living Management

, Inc. (Employer)

. On appeal, Claimant argues that an order granting partial termination is contrary to

well

- settled law. For the following reasons, we reverse in part and a ffirm in part

.2 Claimant suffered a work injury on September 24, 2010 , in th e nature

of a low back and buttocks sprain and a djustment di sorder with anxiety and
depressive features

. WCJ’s Finding of Fact No. 1 . On November 1 5 , 2013, t he
parties executed a Compromise and Release Agreement (C&R)

, settling the
indemnity po rt ion of the c laim and providing that Employer remained liable for

medical expenses causally related to the accepted physi cal and psychological
injuries. Reproduced Record ( R.R. ) at 12 a

- 24a.

On June 20, 2016, Employer filed a termination petition alleging that
Claimant had fully recovered from his work injuries. R.R. at 25a

- 28a. Claimant

filed an answer den y i ng th os e allegations and requesting reasonabl e contest

attorney ’s fees in accordance with Section 440 of the Workers’ Compensation Act

(Act). 1 T he matter was assigned t o a WCJ for hearings.

In support of its petition, Employer presented the deposition testimony

of Robert Cohn

, M.D., who is board certified in psychiatry and neurology. Based

on his May 23, 2016 examination of Claimant and his r eview of Claimant’s

medical records, Dr. Cohn opined that Claimant had fu lly recovered from his
psychiatric injury of adjustment disorder with mixed anxiety and depression. Dr.

Cohn found that Claima n t c on t i nue d to struggle with anxiety . However, Dr. Cohn
believed that Claimant’s anxiety stemmed from severe obsessive

- compulsive

disorder (OCD) , which predated and was unrelated to the work injury.

Cl a imant presented the deposition testimo n y of his treating
psychologist, Brian Raditz, Ed. D. Dr. Raditz has been treating Claimant for
chronic pain , as well as for obsessive

- compulsive behavior and depression. Dr.

1 Act of June 2, 1915, P.L. 736, as amended

, added by section 3 of the A ct of February 8, 1972, 77 P.S. §996.3

R aditz testified that Clai m ant’s depression, anxiety , and medical cond i tion ha d not
changed during the two years he ha s been seeing Claimant . He disagree d with Dr.

Cohn’ s opinion that Claimant had re c ov e red f r om his adjustment disorder with
depression and anxiety

, and he believed t hat Claima n t’s OCD wa s causally related

to the work injury.

Claimant testified that he was injured on September 24, 2010

, when
he slipped and fell while getting out of a bus. He denied having any treatment,

medications, or symptoms of anxiety or depre ssion prior to the work injury.
According to C laimant, he began noticing those symptoms three to four weeks

later. Claimant stated that while he was unable to get out of bed due to the work
injury , he developed rituals, such as making lists. He explaine d that he repeatedly

check ed to be sure he ha d certain items with him

, and he constantly check ed the

stove, faucets, door

, and telephones. Claimant testified that he continued to
experience anxiety and depression and s aw Dr. Raditz bi weekly to address tho se

symptoms a s well as his compulsive behavior.

Citing Claimant’s demeanor and his medical records, t he WCJ
rejected Claimant’s testimony as not credible. The WCJ found Dr. Cohn’s
testimony more credible and persuasive than the testimony of Dr. Raditz and
accepted Dr. Coh n ’s opinion that Claimant had recovered from his adjustment
disorder with anxiety and d epressive features. However, the WCJ rejected
Employer’s assertion that Claimant was recovered from his low back and buttocks
sprain as unsupported by any evidence.

Based on these findings

, the WCJ concluded that Employer proved

Claim a n t had fully recovered from his psychological injuries but remained liable4

for medical treatment for the recognized physical injury . By order dated June 12,

2017, t he WCJ granted Employer’s termination petition “ in part.” R.R. at 35a.

Claimant appealed to the Board, arguing that termination i s proper ly
granted only where an employer establishes that the claimant f u lly recovered from

all recognized work injuries. The Board reject ed C laimant’s argument and

affirmed the WCJ’s decision.

On appeal to this Court, 2 Claimant does not challenge the WCJ’s
findings or conclusions, including the WCJ’s determination that he fully recovered

from the accepted psychological conditions. However, Claimant argues that th e

WCJ committed an error of law in ordering a partial termination of benefits.

Claimant maintains that th is award disregards long

- standing precedent , which

hold s that a termination of benefits is appropriate on ly where the employer proves
that a claimant is fully recovered from all recognized work injuries. Claimant

asserts that departing from this body of law will force claimants to defend against
multiple termination petitions on a piecemeal basis

. Claimant also contends that
Employer should have pursued relief by way of utilization review (UR) , which
addresses the reasonableness and necessity of medical treatment. 3

2 Our scope o f review is limited to determining wheth e r constitutional rights were violated, whether an error of law was committed, or whether neces sary findi n gs of fact a re supported by substantial e viden c e. Mil n er v. Workers’ Compensation Appeal Board (Main Line Endoscopy Center

) , 995 A.2d 492, 495 n.2 (Pa. Cmwlth. 2010).

3 Section 306(f.1) of the Act, 77 P.S. §531. In relevant part, Section 306(f.1) provides:

(5) The employer or insurer shall make payment and providers shall submit bills and records in accordance with the provisions of this section. All payments to providers for treatment provided pursuant to thi s act shall be made within thirty (30) days of receipt of such bills and records unless the employer or insurer disputes (Footnote continued on next page...)5 In response, Employer asserts that under the facts of this case

, where
liability for wage loss was settled by way of a C&R and Claimant’s recognized
work injuries are entirely distinct , a “partial termination” award was proper.
Employer argues that it should not remain responsible for Claimant’s mental health
treatment where that discrete inju ry has resolved. Employer also asserts that while
UR addresses the reasonableness and necessity of treatment, the issue here was not
a challenge to specific treatment

.

We take this opportunity to correct the misconception s evident in the

decisions below

. It is by now well

- settled law that a termination petition is
properly granted upon proof that all disability has ceased. Lewis v. Workers’
Compensation Appeal Board (Giles & Ransome, Inc.) , 919 A.2d 922, 926 (Pa.

2007) ; Daniels v. Workers’ Compensation Appeal B o ard (Tristate Transport)

, 753

A.2d 293, 297 (Pa. Cmwlth. 2000 )

. We discern no basis in our case law for a

(continued...)

the reasonableness or necessity of the treatment provided pursuant to paragraph (6). The nonpayment to providers within thirty (30) da ys for treatment for which a bill and records have been submitted shall only apply to that particular treatment or portion thereof in dispute; payment must be made timely for any treatment or portion thereof not in dispute.

. . . (6) Except in those cases in which a workers’ compensation judge
asks for an opinion from peer review under [S] ection 420, disputes as to reasonableness or necessity of treatment by a health care provider shall be resolved in accordance with the following provisions: (i) The reas onableness or necessity of all treatment provided by a health care provider under this act may be subject to prospective, concurrent or retrospective utilization review at the request of an employe, employer or insurer. The department shall authorize util ization review organizations to perform utilization review under this act.6

“partial termination of benefits.” Importantly, however, and contrary to
Employer’s concerns, a WCJ’s finding of full recovery from a discrete injury is
binding in future proceedings and is sufficient to relieve Employer of liability for
related medical expenses. Mino v. Workers’ Compensation Appeal Board (Crime

Prevention Association) , 990 A.2d 832, 839 (Pa. Cmwlth. 2010)

.

In County o

f Allegheny v

. W

orkers’ C ompensation A ppeal B oard

(Nicini) (Pa. Cmwlth., No. 2602 C

. D

. 20 15, filed February 3, 20 17)

, 4 we explained :

[ A ] n employer “must prove that all of the claimant’s work

- related disability has ceased” in order to be entitled to a termination of medical and wage loss benefits related to the work injury. Central Park Lodge v. Workers’ Compensation Appeal Board (Robinson) , 718 A.2d 368, 370 (Pa. Cmwlt h. 1998) (emphasis in original) (citations omitted). Pennsylvania courts have repeatedly held that in a termination proceeding, an employer bears the burden of proving by substantial evidence that a claimant’s disability has ceased, “or that any remaining conditions are unrelated to the work injury. An employer may satisfy this burden by presenting unequivocal and competent medical evidence of the claimant’s full recovery from her work

- related injuries .” Westmoreland County v. Workers’ Compensation Appea l Board (Fuller) , 942 A.2d 213, 217 (Pa. Cmwlth. 2007) (empha sis added) (citation omitted).

The Board interpreted the decision in Indian Creek Supply v. Workers’ Compensation Appeal Board (Anderson) , 729 A.2d 157 (Pa. Cmwlth. 1999)

, as inviting a departur e from our case law. In that case we held that the employer satisfied its burden with respect to the claimant’s lumbosacral strain but not the residual problems from his disc herniation. We find no support

4 Section 414 of this Court ’ s Internal Operating Procedures authorizes the citation of unreported panel decisions issued after January 15, 2008, for their persuasive value, but not as binding precedent. 210 Pa. Code § 69.414.7 for the Board’s analysis in Indian Creek Supply

. More important, we believe that the Board is fashioning a “cure” for a problem that does not exist: it is by now well settled that a finding of fact that is not challenged on appeal is binding on the parties in subsequent proceedings. Mino v. Workers’ C ompensation Appeal Board (Crime Prevention Association) , 990 A.2d 832, 839 (Pa. Cmwlth. 2010); Temple University Hospital v. Workers’ Compensation Appeal Board (Sinnot) , 866 A.2d 4 89, 494 n.4 (Pa. Cmwlth. 2005). Here, the WCJ’s unchallenged finding that [the c laimant ] was fully recovered from the hand injury is sufficient, in itself, to entitle [the e mployer ] to the relief the Board seeks to supply. We conclude that the Board’s piecemeal approach is both unnecessary and ill

- advised, and we direct the Boa rd’s attention to our decision in Ingram Micro v. Workers’ Compensation Appeal Board (Heim) (Pa. Cmwlth., No. 1716 C.D. 2013, filed May 23 , 2014) (holding that termination of benefits in part was improper).
County of Allegheny

, slip op

. at 4

- 5 n.6 ( bold emphasis added)

.

Consistent with our previous decisions, the WCJ’s finding that
Claimant was fully recovered from the psychological injury was sufficient, alone

, to relieve Employer of the obligation to pay for treatment related to that discrete
injury. Mino , 990 A.2d at 839; Temple University Hospital , 866 A.2d at 494 n.4.

Further , although the separate physical and psychological injuries were causally

related to the same event , Claimant does not assert any causal relationship between
his physical injury and his psychological injury. Consequently, Employer’s

contention that it will remain liable for Claimant’s mental health treatment unless a
“partial termination” is granted is unsupported. Mino , 990 A.2d at 839; Temple8

University Ho spital , 866 A.2d at 494 n.4. T he WCJ erred i n granting a “partial

termination of benefits

, ” a remedy that is not recognized under P e nnsylvania law. 5

However, w hile piecemeal litigation is strongly disfavored , under the
unique facts of this case

, the WCJ’s error had no practical effect. On appeal,

C laimant does not challenge the WCJ’s determination that he fully recovered from
his psychological injury

, and as a result, th e Court can offer Claiman t no
meaningful relief

.

Accordingly, we reverse the Bo ard’s order insofar as it affirms the
WCJ’s “partial” termination of benefits , and we affirm the Board’s order in all
remaining respects

.

MICHAEL H. WOJCIK, Judge

Judge Fizzano Cannon did not participate in the decision of this case.

5 Employer could have sought a modification o f its obligat ion s by filing a review petition under Section 413 of the Act, 77 P.S. § 772

. Furthermore , despite filing a termination petition, Employer presented no evidence whatsoever related to Claimant’s physical injuries

. We caution employers that s uch conduct may subject them to un reasonable contest attorney fees

. Section 440 of the Act, 77 P.S. § 996.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Constantine Mitoulis, :

: Petitioner :

:

v. : No. 991 C.D. 2018

: Workers' Compensation Appeal : Board (Sunrise Senior Living : Management, Inc.), :

: Respondent :

O R D E R

AND NOW, this 27 th day of April , 20 20

, the order of the Workers’
Compensation Appeal Board, dated June 2 0, 2018, is AFFIRMED in part and
REVERSED in part in accordance with the foregoing opinion.

__________________________________ MICHAEL H. WOJCIK, Judge