E. Dixon v. WCAB (Medrad, Inc.), 2277 C.D. 2015

Claimant (Dixon) suffered a work-related cervical injury in 2002 and remained entitled to reasonable and necessary medical treatment after his wage-loss benefits were suspended; Attorney Nariman Dastur represented him.
Employer (Medrad) filed a Utilization Review Request (LIBC-601) on Jan. 22, 2013 challenging certain treatments by Dr. Reyer; the form omitted counsel names and proof of service to counsel.
The Bureau assigned the request to a URO, which issued a determination limiting reasonable care and finding much treatment unnecessary; the UR Face Sheet indicated no employee statement was received.
Claimant timely filed a petition to review the UR determination (UR Petition) and a Penalty Petition alleging violation of 34 Pa. Code §127.452(b) for failure to serve counsel.
At hearings the WCJ found Claimant received the Face Sheet and UR Determination, rejected Claimant’s testimony that he did not receive the UR Request/Notice, found no prejudice from the omission, treated the omission as a de minimis technical violation, denied penalties, and dismissed the UR Petition; the Board affirmed and the Commonwealth Court affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether UR Determination must be invalidated because Employer failed to serve Claimant’s counsel with the UR Request	Failure to serve counsel violated 34 Pa. Code §127.452(b) and deprived counsel of opportunity to influence the review, so UR Determination is invalid	Omission was a technical error; claimant received the Face Sheet/Determination and timely appealed so no prejudice; Bureau accepted request and URO proceeded	WC affirmed: omission was technical; claimant (per WCJ credibility findings) received notice and showed no prejudice, so UR denial stands
Whether penalties should be imposed for the failure to serve counsel	Penalty justified for violation of Bureau regulation	Violation was de minimis, employer had reasonable basis to contest, and contest was not frivolous	WC affirmed: imposition of penalty discretionary; WCJ did not abuse discretion in denying penalty
Whether attorney’s fees should be awarded	Fees warranted if claimant prevailed	No fees because claimant did not prevail and employer had reasonable basis to contest	Denied: claimant did not prevail on petitions, so no mandatory fee award
Whether WCJ’s credibility findings and factual conclusions were reviewable	Claimant argued error in factual findings about receipt and prejudice	Employer relied on WCJ’s credibility determinations supported by record	Court will not reweigh credibility; substantial evidence supports WCJ and Board; findings upheld

Gallie v. Workers’ Compensation Appeal Board (Fichtel & Sachs Indus.), 859 A.2d 1288 (Pa. 2004) (absence of counsel’s service, without prejudice to claimant who received notice, does not require vacatur of UR action)
Sell v. Workers’ Comp. Appeal Bd. (LNP Eng’g), 771 A.2d 1246 (Pa. 2001) (appellate court may not reweigh WCJ credibility determinations)
Dorsey v. Workers’ Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191 (Pa. Cmwlth. 2006) (WCJ credibility findings will be upheld unless arbitrary or capricious)
US Airways v. Workers’ Comp. Appeal Bd. (McConnell), 870 A.2d 418 (Pa. Cmwlth. 2005) (prejudice determinations for lack of service are for the WCJ and not overturned absent abuse of discretion)
Crucible, Inc. v. Workers’ Comp. Appeal Bd. (Vinovich), 713 A.2d 749 (Pa. Cmwlth. 1998) (imposition and amount of penalties are discretionary and reviewed for abuse of discretion)
Hough v. Workers’ Compensation Appeal Board (AC & T Companies), 928 A.2d 1173 (Pa. Cmwlth. 2000) (reasonableness of an employer’s contest must be assessed on case-specific facts)