The Full Board, at its meeting held on May 21, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on September 6, 2012.
The issue presented for Mandatory Full Board Review is whether the C-8.1 forms should be resolved in favor of the provider pursuant to Workers' Compensation Law (WCL) § 25(1)(f).
The Workers' Compensation Law Judge (WCLJ) resolved C-8.1 issues relating to treatment and/or disputed medical bills in favor of the medical provider, per WCL § 25(1)(f).
The Board Panel majority affirmed the WCLJ's decision, concluding that the WCLJ properly resolved the C-8.1 forms in favor of the provider.
The dissenting Board Panel member would have modified the WCLJ's decision to find that the C-8.1 forms in the 2001 case should not be resolved in favor of the provider, pursuant to WCL § 25(1)(f) "given that the treatment may be related to the 2010 case and the claim has not yet been established for anxiety and depression …"
In their application for Mandatory Full Board Review filed on October 5, 2012, the Special Funds Conservation Committee (Special Funds) requests that the opinion of the dissenting Board Panel member be adopted by the Board.
In a rebuttal filed with the Board on November 1, 2012, the claimant requests that the decision of the Board Panel majority be affirmed. The claimant argues that the evidence in the record shows that the claimant was receiving psychotherapy for his established traumatic brain injury symptoms related to the 2001 claim, along with anxiety and depression. The claimant further noted that prior C-8.1 forms were resolved in favor of the provider per WCL § 25(1)(f), and no request for review was filed.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This case (WCB Case #50202664) has been established for injuries to the forehead, post traumatic headaches, cerebral concussion, cervical strain and post concussive syndrome that resulted from an accident on October 22, 2001. In a decision filed on April 14, 2009, liability for the claim was transferred to Special Funds effective as of October 22, 2008, pursuant to WCL § 25-a.
WCB Case #G0312364 has also been established for a work-related injury to the low back, based upon an accident which occurred on July 11, 2010. In a decision filed on November 21, 2011, the WCLJ found prima facie medical evidence for consequential depression and anxiety, based on a report from Dr. Lifrak of an examination on February 28, 2011 (ECF Doc ID #177334171 in WCB Case #50202664).
In the report dated February 28, 2011, Dr. Lifrak, the claimant's treating neuropsychologist, noted that the claimant continues to receive one hour of individual psychotherapy treatment to address the long term socio-emotional sequelae of the traumatic brain injury (TBI) and post-concussion syndrome (PCS) sustained on October 22, 2001. Dr. Lifrak noted that the claimant had continued to work full-time since the accident despite daily difficulties with persistent fatigue, chronic pain in the back and neck, headaches, intermittent weakness, numbness and tingling of the extremities, episodes of visual dysfunction, sleep disturbance, and dizziness. The claimant's psychotherapy sessions have addressed his fluctuating levels of depression and anxiety, and the irritability and frustration that are commonly associated with PCS. Until recently, the claimant continued work; physical therapy had allowed him to manage his chronic pain while working. However, in July 2010, the claimant had a severe exacerbation of back pain while at work, and has been disabled from work since then. He has received physical therapy and pain management injections, but continues to experience severe back pain and worsened numbness. Over the last few months, the claimant has had a severe exacerbation of emotional distress, including heightened depression, anxiety and frustration.
Dr. Conciatori, Special Funds' psychiatric consultant, submitted an IME-4 report of an examination on August 5, 2011, in which he noted that the claimant reported that he received psychiatric treatment as a result of the injury on October 22, 2001, supposedly for cognitive retraining due to post-concussion syndrome and/or traumatic brain injury. However, Dr. Conciatori found no "psychiatric pathology as it relates to the 10/22/01 accident. Although there may have been mood symptoms in the past from that accident, they may have dissipated by this time. Going by the notes of [the claimant's therapist], the focus of his therapy has been on the new accident and its sequelae."
Special Funds submitted several C-8.1 forms objecting to psychotherapy treatment provided by Dr. Lifrak on various dates between October 13, 2011, and December 8, 2011. Special Funds objected to the treatment as not causally related to the compensable injury based upon Dr. Conciatori's IME report. The psychotherapy records for the treatment dates in question indicate treatment for, among other things, traumatic brain injury sequelae of headache, fatigue, light headedness, mental fogginess, as well as depression and anxiety.
At the hearing held on January 11, 2012, the WCLJ noted that prior C-8.1 forms had been filed and had been found to be in favor of the provider, per WCL § 25(1)(f), and that the prior findings had never been appealed. The WCLJ then resolved the C-8.1 forms currently in dispute in favor of the provider, per WCL § 25(1)(f).
The WCLJ's findings were set forth in the decision filed on January 17, 2012, and Special Funds filed an application for administrative review of that decision.
WCL § 25(1)(f) provides, in pertinent part, that "[w]henever compensation is withheld solely because a controversy exists on the question of liability as between insurance carriers [or] the special disability fund … the board may direct that any carrier [or] the special disability fund … shall immediately pay compensation … [and] such payment or payments shall not be deemed an admission against interest by the carrier [or] special disability fund."
Here, WCL § 25(1)(f) does not apply in the 2001 case (WCB Case #50202664) since the bills in dispute were, in part, for the claimant's treatment with Dr. Lifrak for anxiety and depression. The Full Board notes that while there has been a finding of prima facie medical evidence for consequential anxiety and depression in WCB Case #G0312364, the claim has yet to be amended to include these additional sites. The Full Board further notes that the consultant for Special Funds found that the recent treatment with Dr. Lifrak was related to anxiety and depression in the 2010 case and not causally related to the 2001 case, despite the fact that the claimant also treated regularly with Dr. Lifrak for his symptoms in the 2001 case.
Based on this evidence, the C-8.1s should be held in abeyance pending a resolution of the issue of anxiety and depression in the 2010 case.
ACCORDINGLY, the WCLJ decision filed January 17, 2012, is MODIFIED to find that the C-8.1 forms in the 2001 case (WCB Case #50202664) should not be resolved in favor of the provider, pursuant to WCL § 25(1)(f). The rest of the WCLJ decision remains in effect. Pursuant to the decision subsequently filed on February 19, 2013, the case is continued.