D. Clavin v. WCAB (Oliver Sprinkler Company, Inc.), 139 C.D. 2016

Background

Claimant injured his right shoulder at work in July 2008; Employer initially accepted a medical-only NCP describing adhesive capsulitis (frozen shoulder).
Claimant later pursued claim petitions; a WCJ ultimately found a right shoulder injury (adhesive capsulitis) and a groin strain and approved a compromise & release in August 2013 that preserved Employer’s obligation to pay medicals incurred through August 20, 2013.
Claimant underwent arthroscopic shoulder surgery in February 2013 for a progressed rotator cuff tear and later sought penalties under Section 435 for Employer’s alleged unilateral refusal to pay ~ $65,000 in surgery and therapy costs.
Claimant relied on his treating orthopedist’s 2014 report linking the rotator cuff tear and 2013 surgery to the 2008 work injury; the doctor had earlier (2011 deposition) indicated the rotator cuff disease was not work-related and that adhesive capsulitis was the primary diagnosis.
The WCJ rejected the 2014 causation opinion as inadequately explained and found the surgery not causally related to the 2008 injury; the Board affirmed and the Commonwealth Court upheld that decision.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Employer’s unilateral refusal to pay 2013 medicals required imposition of penalties under Section 435	Clavin: Employer circumvented utilization review and, because surgery was work-related, Employer’s refusal exposed it to penalties	Employer: Medicals were not causally related to the accepted 2008 injury; nonpayment justified if treatment not compensable	Held: No penalties — WCJ credited evidence that 2013 surgery was not shown to be work-related and reasonably rejected treating doctor’s changed opinion
Whether treating physician’s 2014 causal opinion must be credited despite prior contrary deposition	Clavin: The later report ties progression of rotator cuff tear to 2008 injury and explains need for surgery	Employer: Prior deposition did not attribute rotator cuff disease to the work injury; the unexplained change undermines credibility	Held: WCJ permissibly rejected the late, unexplained change in opinion; credibility determinations are for the WCJ
Whether denial of penalty constitutes an abuse of discretion	Clavin: Denial reverses the Act’s protections and Listino precedent about employer risk when refusing payment	Employer: Credible dispute over causation removes penalty liability	Held: No abuse — penalty decisions are discretionary and supported by substantial evidence
Whether utilization-review or procedural remedies were bypassed by Employer’s nonpayment	Clavin: Employer’s refusal prevented utilization-review protections from operating	Employer: If medicals are not causally related, Employer need not pay and utilization-review is not applicable	Held: Court declined relief because causation was unresolved in claimant’s favor; Employer’s nonpayment did not compel penalties when WCJ found non-causation

Key Cases Cited

Westinghouse Elec. Corp. v. Workers’ Comp. Appeal Bd. (Weaver), 823 A.2d 209 (Pa. Cmwlth. 2003) (employer must timely pay reasonably necessary work-related medicals; disputes on necessity or reasonableness go to utilization review)
City of Phila. v. Workers’ Comp. Appeal Bd. (Sherlock), 934 A.2d 156 (Pa. Cmwlth. 2007) (employer may not use unilateral nonpayment to evade the Act, but liability for penalties depends on later causation findings)
Listino v. Workmen’s Comp. Appeal Bd. (INA Life Ins. Co.), 659 A.2d 45 (Pa. Cmwlth. 1995) (if employer refuses payment and WCJ later finds treatment work-related, employer risks penalties)
Shuster v. Workers’ Comp. Appeal Bd. (Pa. Human Relations Comm’n), 745 A.2d 1282 (Pa. Cmwlth. 2000) (claimant bears initial burden in penalty petitions)
Sanders v. Workers’ Comp. Appeal Bd. (Pa. Human Relations Comm’n), 756 A.2d 129 (Pa. Cmwlth. 2000) (failure to meet claimant’s burden requires denial of penalty petition)
Buchanan v. Workmen’s Comp. Appeal Bd. (Mifflin Cnty. Sch. Dist.), 648 A.2d 99 (Pa. Cmwlth. 1994) (if medical bills are not work-related, denial of penalty is proper)
A & J Builders, Inc. v. Workers’ Comp. Appeal Bd. (Verdi), 78 A.3d 1233 (Pa. Cmwlth. 2013) (WCJ has exclusive province over credibility and evidentiary weight)
Wagner v. Workers’ Comp. Appeal Bd. (Anthony Wagner Auto Repairs & Sales, Inc.), 45 A.3d 461 (Pa. Cmwlth. 2012) (appellate review defers to WCJ findings supported by substantial evidence)
Daniels v. Workers’ Comp. Appeal Bd. (Tristate Transp.), 828 A.2d 1043 (Pa. 2003) (inconsistencies in medical testimony support credibility determinations)
Dorsey v. Workers’ Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191 (Pa. Cmwlth. 2006) (same)
Delarosa v. Workers’ Comp. Appeal Bd. (Masonic Homes), 934 A.2d 165 (Pa. Cmwlth. 2007) (even if medicals are found compensable, imposition of penalties remains discretionary)