Opinion
No. 534 C.D. 2013
09-06-2013
Central Air Freight Services, Inc. and Norguard Insurance Company, Petitioners v. Workers' Compensation Appeal Board (Byer), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this appeal involving two left knee injuries and a dispute as to liability for ongoing indemnity benefits between two insurers, Central Air Freight Services, Inc. (Employer) and Norguard Insurance Company (Norguard) (collectively, Norguard) ask whether a Workers' Compensation Judge (WCJ) erred in granting John Byer's (Claimant) reinstatement petition and awarding Claimant unreasonable contest attorney fees. Upon review, we affirm.
I. Factual and Procedural Background
Claimant began working for Employer in 1995. In October 2003, he sustained a work-related left knee injury in the nature of a torn meniscus. In March 2004, Norguard issued a notice of temporary compensation payable commencing payment of indemnity benefits. About a month later, Norguard issued a notice stopping temporary compensation and a notification of suspension because Claimant returned to work with no loss of earnings. A few months later, the parties executed a supplemental agreement for the suspension of benefits.
Claimant sustained a second work-related left knee injury in May 2009. He filed a claim petition against Employer. The State Workers' Insurance Fund (SWIF) denied the allegations on Employer's behalf. Further, SWIF alleged that Claimant's injury was a recurrence of his October 2003 work injury, and SWIF did not insure Employer at that time.
Norguard ceased providing Employer workers' compensation insurance coverage as of June 2004.
On the same day Claimant filed his claim petition, he also filed a reinstatement petition, alleging he "has a recognized injury to his left knee on which he suffered a recurrence on 5/11/09. Reinstatement of benefits is requested." Certified Record (C.R.), Judge Ex. 14. Norguard denied the allegations on Employer's behalf. Hearings before a WCJ ensued.
About four months after the first hearing, at Claimant's request, the WCJ issued an interlocutory order under Section 410 of the Workers' Compensation Act (Act). That order states, "the evidence thus far presented indicates that Claimant suffers a work-related left knee injury which disables him, that knee problem arising out of his employment with [Employer]; and ... counsel for NorGuard and counsel for [SWIF], pending final disposition agree that a 410 Order is appropriate." C.R. Judge Ex. 10. Thus, the WCJ ordered that indemnity and medical benefits for the left knee be divided between Norguard and SWIF, and that 20% of the indemnity benefits be deducted and paid to Claimant's counsel.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §751. Section 410 states, as relevant:
Whenever any claim for compensation is presented and the only issue involved is the liability as between the defendant or the carrier or two or more defendants or carriers, the referee of the department to whom the claim in such case is presented shall forthwith order payments to be immediately made by the defendants or the carriers in said case. After the department's referee or the board on appeal, render a final decision, the payments made by the defendant or carrier not liable in the case shall be awarded or assessed against the defendant or carrier liable in the case, as costs in the proceedings, in favor of the defendant or carrier not liable in the case.77 P.S. §751.
Before the WCJ, Claimant testified he worked for Employer as a truck driver. He suffered a left knee injury in October 2003 for which he treated with Dr. Mark Perlmutter. In March 2004, Dr. Perlmutter performed surgery on Claimant's left knee. After the surgery, Claimant experienced some pain, but after a period of about four or five weeks, he returned to his pre-injury position. In 2008, Claimant again experienced pain in his left knee for which he treated with Dr. Perlmutter who recommended an MRI and who prescribed and administered two series of injections. Claimant continued to perform his regular duties until May 2009. On May 11, 2009, Claimant felt "his knee pop" while getting into his truck. WCJ Op., 1/20/11, Finding of Fact (F.F.) No. 27(b). Shortly thereafter, he began treating with David Cooper, M.D. (Claimant's Physician). On June 10, 2009, Claimant's Physician performed a second knee surgery on Claimant. Claimant did not return to work after June 9, 2009.
In support of his petitions, Claimant presented the deposition testimony of his Physician, who is board-certified in orthopedic surgery, and who began treating Claimant in May 2009. Claimant's Physician testified Claimant reported he underwent surgery in 2004, and that he improved "a little" after the surgery, but he continued to experience problems. F.F. No. 32(d). Claimant also reported suffering a second left knee injury in May 2009. Claimant's Physician performed arthroscopic surgery on Claimant's left knee in June 2009 to remove a new tear in the meniscus suffered in the May 2009 incident. During the course of that surgery, Claimant's Physician found that during the first surgery in 2004, Dr. Perlmutter removed the majority of the posterior of the medial meniscus or the posterior horn of the medial meniscus, which Claimant's Physician opined, is "the most important part of the meniscus," F.F. No. 38(d), because of its stabilizing effect.
Claimant's Physician further opined that between May and early-August 2009, Claimant could not work in any capacity. Between early-August and October 7, 2009, Claimant could work in a light-duty capacity, but he remained unable to perform his pre-injury position. Claimant's Physician further opined that as of October 9, 2009, he "considered ... Claimant's prognosis to be guarded and was of the opinion that ... Claimant's condition was eventually going to deteriorate to the point where he would need a total knee replacement." F.F. No. 41. Ultimately, Claimant's Physician opined, "[a]s a result of the 2003 work injury and the ensuing surgery by Dr. Perlmutter ... Claimant has developed post-traumatic arthritis which, as of October 7, 2009, had progressed down to the subcondylar bone, which was necessitating treatment and future care." F.F. No. 43. Claimant's Physician also opined that the new tear of the anterior medial portion of the medial meniscus Claimant suffered in May 2009, which was surgically repaired, no longer played a role in his current problems.
For its part, SWIF presented the deposition testimony of Scott Naftulin, D.O. (SWIF's Physician), who is board-certified in physical medicine and rehabilitation, and who examined Claimant on one occasion in January 2010. SWIF's Physician testified Claimant reported a work injury in May 2009. Claimant also reported a previous work injury and surgery, ongoing problems, and two courses of viscosupplementation, without benefit. SWIF's Physician explained that the near-total posterior medial meniscectomy after Claimant's first injury led to premature osteoarthritic changes in the knee and to activity-limiting symptoms that arose before Claimant's second injury in May 2009. SWIF's Physician opined Claimant fully recovered from the May 2009 injury, but he was unable to return to work because of left knee post-traumatic osteoarthritis.
Norguard presented the testimony of Ross Noble, M.D. (Norguard's Physician), who is board-certified in physical medicine and rehabilitation, and who examined Claimant on one occasion in November 2009. Norguard's Physician opined the October 2003 injury did not contribute to Claimant's disability in 2009 because Claimant had a complete resolution of pain following the first surgery in 2004. Norguard's Physician opined that Claimant is disabled in that he cannot perform his pre-injury job; however, he opined Claimant's ongoing pain and inability to return to work are a result of the May 2009 work injury. He opined the 2003 work injury is not causing any current disability.
Ultimately, the WCJ credited the testimony of Claimant and his Physician. Additionally, the WCJ found SWIF's Physician's testimony regarding Claimant's ongoing problems credible and consistent with the totality of the record. The WCJ rejected the opinions of Norguard's Physician to the extent they conflicted with the testimony of Claimant's Physician and SWIF's Physician.
Based on these determinations, the WCJ found the 2003 and 2009 work injuries were to different portions of the knee, with the 2003 injury occurring in the back part of the knee, and the 2009 injury occurring in the front part of the knee. Specifically, the WCJ found, as a result of the October 2003 injury, Claimant tore the posterior horn of the left medial meniscus, which led to removal of the posterior horn in the 2004 surgery. Secondary to the near-total left posterior medial meniscectomy, Claimant now suffers post-traumatic arthritis, which, as of October 2009, is the current cause of his disability.
The WCJ also found Claimant sustained an anterior meniscal tear in May 2009 from which he recovered as of October 7, 2009. However, Claimant could not return to full duty work solely because of his post-traumatic arthritis. Based on these findings, the WCJ granted Claimant's claim petition for a closed period, terminating benefits for the May 2009 injury effective October 7, 2009. The WCJ also granted Claimant's reinstatement petition for the October 2003 injury, awarding total disability benefits as of October 8, 2009 and ongoing.
In addition, the WCJ found that both SWIF and Norguard engaged in an unreasonable contest and ordered each insurer pay 50% of an attorney fee award of $6,645. To that end, the WCJ noted a dispute between insurers on the issue of liability cannot establish a reasonable contest as to the claimant. See Morgan v. Workmen's Comp. Appeal Bd. (Strock), 590 A.2d 1375 (Pa. Cmwlth. 1991). Both SWIF and Norguard appealed to the Workers' Compensation Appeal Board (Board), which affirmed as to the merits, but, as explained in greater detail below, reduced the amount of unreasonable contest attorney fees awarded to $3,180 to be paid equally by SWIF and Norguard. This appeal by Employer and Norguard followed.
After filing their appeal, Employer and Norguard filed an application for supersedeas pending review of their petition for review, which this Court denied.
II. Issues
On appeal, Norguard presents three issues. First, it contends the Board erred in affirming the WCJ's decision that granted Claimant's reinstatement petition. Next, Norguard argues the Board erred in determining the opinions of Claimant's Physician and SWIF's Physician constituted competent evidence to support the WCJ's decision. Finally, it asserts the Board erred in determining it presented an unreasonable contest.
Our review is limited to determining whether the WCJ's findings of fact were supported by substantial evidence, whether an error of law was committed or whether constitutional rights were violated. Dep't of Transp. v. Workers' Comp. Appeal Bd. (Clippinger), 38 A.3d 1037 (Pa. Cmwlth. 2011).
III. Discussion
Initially, we note, the WCJ, as the ultimate fact-finder in workers' compensation cases, "has exclusive province over questions of credibility and evidentiary weight ...." Anderson v. Workers' Comp. Appeal Bd. (Penn Center for Rehab), 15 A.3d 944, 949 (Pa. Cmwlth. 2010). The WCJ's authority over questions of credibility, conflicting evidence and evidentiary weight is unquestioned. Minicozzi v. Workers' Comp. Appeal Bd. (Indus. Metal Plating Inc.), 873 A.2d 25 (Pa. Cmwlth. 2005). The WCJ may accept or reject the testimony of any witness, including a medical witness, in whole or in part. Id. We are bound by the WCJ's credibility determinations. Id.
Moreover, "it is irrelevant whether the record contains evidence to support findings other than those made by the WCJ; the critical inquiry is whether there is evidence to support the findings actually made." Id. at 29 (citation omitted). We examine the entire record to see if it contains evidence a reasonable person might find sufficient to support the WCJ's findings. Id. If the record contains such evidence, the findings must be upheld, even though the record may contain conflicting evidence. Id. Additionally, we must view the evidence in the light most favorable to the prevailing party and give it the benefit of all inferences reasonably deduced from the evidence. Wagner v. Workers' Comp. Appeal Bd. (Anthony Wagner Auto Repairs & Sales, Inc.), 45 A.3d 461 (Pa. Cmwlth. 2012).
A. Propriety of Grant of Reinstatement Petition
Norguard first argues the Board erred in affirming the WCJ's decision that granted Claimant's reinstatement petition. Specifically, Norguard asserts a claimant who files a reinstatement petition bears the burden of proving the disability for which compensation was initially paid has recurred or increased, resulting in a loss of earnings. Where, as here, benefits were previously suspended, a claimant seeking reinstatement must prove his earning power is once again adversely affected by his work injury, and that such disability is a continuation of that which arose from his original claim. Bufford v. Workers' Comp. Appeal Bd. (North Am. Telecom), 606 Pa. 621, 2 A.3d 548 (2010). Norguard contends this is a heightened burden of proof.
Here, Norguard argues Claimant did not present sufficient, competent, or credible medical evidence to prove his disability from the 2003 injury recurred or increased or caused a loss of earnings. Thus, the Board should have reversed the WCJ's decision ordering a reinstatement of benefits as of October 8, 2009 and ongoing.
Norguard maintains a careful review of the record shows that substantial evidence supports a finding that the 2009 incident materially contributed to Claimant's need for treatment and his wage loss; therefore, the 2009 injury should have been deemed a new injury, or aggravation. Although the WCJ ordered SWIF, the carrier liable for the 2009 injury, to pay compensation for a closed period, the WCJ erroneously granted a termination as to the 2009 injury as of October 7, 2009. Because there was an aggravation, Norguard argues, SWIF is liable for the payment of Claimant's benefits into the future.
In addition, Norguard maintains, the facts show that, while back at work in his regular duty job, Claimant's activities increased the degeneration in his knee. Each day Claimant worked was "an insult and aggravation." Pet'r's Br. at 17. Each day as a truck driver using a clutch and loading and unloading boxes Claimant suffered an aggravation of the 2003 injury. See Reproduced Record (R.R.) at 88a, 185a. In these types of cases, Norguard asserts, the carrier who held coverage last would be at risk, which, in this case, is SWIF.
Based on these facts, Norguard contends, the WCJ should have denied reinstatement against Norguard because Claimant did not prove that in 2009 and thereafter, he still suffered symptoms that caused wage loss as a result of the 2003 injury. Rather, the facts show Claimant suffered a new injury that materially contributed to his symptoms.
In Bufford, our Supreme Court clarified the relevant burdens where a claimant seeks reinstatement of suspended benefits. The modified standard set forth in Bufford is as follows:
A claimant seeking reinstatement of suspended benefits must prove that his or her earning power is once again adversely affected by his or her disability, and that such disability is a continuation of that which arose from his or her original claim. The claimant need not re-prove that the disability arose from his or her original claim. Once the claimant meets this burden, the burden then shifts to the party opposing the reinstatement petition. In order to prevail, the opposing party must show that the claimant's loss in earnings is not caused by the disability arising from the work-related injury. This burden may be met by showing that the claimant's loss in earnings is, in fact, caused by the claimant's bad faith rejection of available work within the relevant required medical restrictions or by some circumstance barring receipt of benefits that is specifically described under provisions of the Act or in this Court's decisional law.Bufford, 606 Pa. at 637, 2 A.3d at 558. "In clarifying the relevant burdens, the Supreme Court eliminated the requirement that a claimant seeking reinstatement after a suspension of benefits prove that his or her loss of earnings was through no fault of his or her own." Verity v. Workers' Comp. Appeal Bd. (Malvern Sch.), 38 A.3d 936, 941 (Pa. Cmwlth. 2011) (citing Bufford, 606 Pa. at 635, 2 A.3d at 557).
Further, this Court explains:
A claimant is not required to produce medical evidence to establish continuing disability where, as here, benefits have been suspended, not terminated. Even if a period of time has passed, the continuation of the injury is acknowledged by the fact that benefits have been merely suspended, and the employer has not moved to terminate its liability for their payment.McNulty v. Workers' Comp. Appeal Bd. (McNulty Tool & Die), 804 A.2d 1260, 1263-64 (Pa. Cmwlth. 2002) (citations omitted).
Even where a reinstatement petition has been filed following a suspension, the burden is on the employer, in the nature of an affirmative defense, to demonstrate that the disability is, in fact, attributable to a new injury for which a different employer might be liable. This is because a presumptive partial disability exists whenever there is an agreement to suspend compensation.
In addition, as to the distinction between an "aggravation" and a "recurrence," this Court explains:
If an incident materially contributes to a previous work-related injury, a new injury, or aggravation, has occurred. Therefore, the employer at the time of the aggravation is liable for the payment of a claimant's compensation benefits. However, if a compensable disability results directly from a prior injury but manifests itself on the occasion of an intervening incident, which does not contribute materially to the disability, then the claimant has suffered a recurrence and the
employer at the time of the initial injury is responsible for the payment of benefits. If the sequence of events is not sufficient to establish whether a claimant has suffered an aggravation or a recurrence, unequivocal medical testimony is essential.Id. at 1264 (citations omitted). Whether a disability results from an aggravation of a pre-existing condition or is a recurrence of a prior injury is a question of fact for the WCJ to determine. Reliable Foods, Inc. v. Workmen's Comp. Appeal Bd. (Horrocks), 660 A.2d 162 (Pa. Cmwlth. 1995).
Applying these principles here, Claimant sustained an October 2003 left knee injury for which he initially received indemnity benefits, followed by a suspension of benefits based on his return to work. See R.R. at 138a. In May 2009, Claimant sustained a "new" injury to a "different" portion of the left knee. F.F. Nos. 50, 60. In resolving the factual issue of which injury caused Claimant's current, ongoing disability, the WCJ made the following pertinent findings (with emphasis added):
43. I find as a fact that: As a result of the 2003 work injury and the ensuing surgery by Dr. Perlmutter the Claimant has developed post traumatic arthritis which, as of October 7, 2009, had progressed down to the subcondylar bone, which was necessitating treatment and future care. ([Claimant's Physician's] deposition, pg 17, lines 20-24; pg 31, line 17-pg 32 line 3).
44. I find as facts that: (a) The Claimant was completely disabled by the May 11, 2009, work injury until August 6, 2009, when Dr. Cooper released Claimant to perform light duty work. (b) Subsequent to October 7, 2009, when the Claimant remained released to return to work light duty, the cause of his impairment, i.e., his ability to only work light duty, was post traumatic arthritis resulting from the 2003 injury. See the credible testimony of [Claimant's Physician] at Cooper deposition, page 18. Reasoning: The opinion of [Claimant's
Physician's] concerning the cause of the Claimant's disability being the 2003 work injury is found to be credible and persuasive and more persuasive than the contrary opinion of [Norguard's Physician] for the reasons indicated in the 'Credibility Comment' to Finding 25 above and in Credibility Finding 73 below. Also see the credible testimony of [Claimant's Physician] which leads this [WCJ] to the make the next finding.
45. I find as a fact that: Claimant was restricted to light duty work as of October 2009 due to his post traumatic arthritis and subsequent synovitis and atrophy of his muscles which conditions along with ongoing pain rendered him unable to perform the truck driving job. See the credible testimony of [Claimant's Physician] at Id. pg 19.
46. I find as a fact that: The type of pain which the Claimant was experiencing as of October 7, 2009, was not the same type of pain he had in May 2009 in that the pain as of October 2009 was arthritic pain and swelling. See the credible testimony of [Claimant's Physician] at Id. pg 24.
47. I find as a fact that: Prior to the May 11, 2009, incident the Claimant was still suffering the effects of the removal of the posterior horn but it was the May 11, 2009, incident which resulted in the second tear occurring. (Id. pg 31). (b) The post traumatic arthritis in the Claimant's left knee is a result of the partial meniscectomy performed by Dr. Perlmutter in 2004. pg 31, line 13-pg 32, line 3).
48. I find as a fact that: As of October 7, 2009, the October 2003 injury which resulted in the 2004 surgery was the only factor in the Claimant's current disability. Reasoning: See the credible testimony of [Claimant's Physician] at Id. pg's 34-35, especially pg 34, lines 16-21 and pg 34, line 22-pg 35, line 4 and the fact that [Claimant's Physician] had last seen the Claimant on October 7, 2009 (two days prior to his deposition). Also see Findings 49 and 50 below.
49. I find as facts that: (a) As a result of the 2003 work injury the Claimant tore the posterior horn of the left medial meniscus which posterior horn was removed. (b) Secondarily to the removal of the meniscus the Claimant is now suffering from
post traumatic arthritis which as of October 7, 2009, was the current cause of his disability. (Id. pg 35). Credibility Comment: This testimony of [Claimant's Physician] was found to be credible and persuasive for the reasons indicated in the 'Credibility Comment' to Finding 25 above and also see Credibility Finding 73 below.F.F. Nos. 43-50. The WCJ further explained (emphasis added):
50. I find as facts that: (a) Claimant sustained a new tear of the anterior medial portion of the medial meniscus on May 11, 2009, which torn medial meniscus was removed and as of October 7, 2009, no longer played a role in the Claimant's disability. (Id. pg 36). (b) As of October 7, 2009, the Claimant was fully recovered from his May 11, 2009, work injury. (Id. pg 36, lines 15-17).
The credible and persuasive testimony of [Claimant's Physician] together with the credible portions of the Claimant's testimony establishes that as of October 7, 2009, the Claimant's physical impairment which precluded him from performing the duties which he was performing as of May 11, 2009, were a result of his October 27, 2003, work injury and the surgery which he underwent as a result of that work injury, which surgery resulted in the development of post traumatic arthritis of the Claimant's left knee. Claimant furthermore has met his burden of proving that he continued to be entitled to total disability benefits at the rate of $508.69 per week commencing October 8, 2009, and continuing. In the course of this litigation Insurer/NorGuard failed to meet its burden of proving that it was entitled to a termination, suspension or modification of Claimant's benefits at any time subsequent to October 7, 2009.WCJ Op. at 19. As evidenced by the citations accompanying the WCJ's findings, the record amply supports the WCJ's determinations. R.R. at 156a-57a, 158a, 162a-63a, 171a, 173a-74a, 175a (Claimant's Physician's testimony). In turn, these determinations support the conclusion that Claimant satisfied his burden for reinstatement as articulated in Bufford.
Further, while Norguard argues Claimant's current, ongoing disability is attributable to his 2009 injury, Norguard bore the burden of proof on this point, see McNulty Tool & Die, and the WCJ chose to credit the testimony of Claimant's Physician, who opined that, "[a]s of October 7, 2009, the October 2003 injury which resulted in the 2004 surgery was the only factor in the Claimant's current disability." F.F. No. 48 (emphasis added); see R.R. at 173a-74a. Because the record supports this finding, we cannot disturb it. Minicozzi.
B. Competency of Credited Medical Evidence
Norguard next argues the testimony of Claimant's Physician and SWIF's Physician is not competent to support the grant of Claimant's reinstatement petition because their testimony is based on an inaccurate understanding of Claimant's history. More specifically, Claimant testified he returned to his full duty position in 2004 without pain, without continuing medication, and with little treatment. R.R. at 79a, R.R. at 80a; see also R.R. at 106a. Norguard argues this remained constant until May 2009 when Claimant suffered his second knee injury. R.R. at 81a. At that point, Claimant promptly began treating with his Physician, and underwent a second surgery shortly thereafter. R R. at 82a.
Importantly, Norguard argues, both Claimant's Physician and SWIF's Physician believed Claimant had an ongoing history of pain after his return to work in 2004. However, this understanding was false. Norguard asserts neither Claimant's Physician nor SWIF's Physician reviewed Claimant's testimony. Also, Claimant's Physician did not review Dr. Perlmutter's records. Norguard contends this error renders the opinions of Claimant's Physician and SWIF's Physician incompetent.
Aside from their inaccurate belief that Claimant had ongoing symptoms, Norguard contends, neither Claimant's Physician nor SWIF's Physician could explain how Claimant worked full duty from 2004 to 2009, and then suddenly could not work after the May 2009 incident. These physicians believed Claimant's degenerative condition as a result of the 2004 surgery presented itself at one discrete moment in 2009, which is almost impossible to believe. The more logical conclusion is that, had the 2009 incident not occurred, Claimant would have continued working and would not have required a second surgery.
Additionally, although both Claimant's Physician and SWIF's Physician relate the specific meniscus degeneration to the first surgery, neither physician reviewed the operative report from that surgery. Further, although Claimant's Physician subsequently performed surgery, there was no way for him to discern when the degeneration occurred because he did not review pictures of the first surgery or the operative report. For this additional reason, Norguard maintains, the opinions of Claimant's Physician and SWIF's Physician are incompetent.
Norguard also argues the testimony of its Physician that Claimant suffered an aggravation in 2009 was more consistent with Claimant's own testimony and records. Although the WCJ credited Claimant's testimony, Norguard points out, he rejected Norguard's Physician's opinion that Claimant fully recovered from the 2003 work injury, even though it was based in part on Claimant's credited testimony; thus, the WCJ's decision is contradictory. Norguard further asserts the WCJ rejected Norguard's Physician's opinion of full recovery because Norguard's Physician was the only physician that opined Claimant fully recovered; however, this is not an adequate basis upon which to reject testimony. Instead, the WCJ should have credited Norguard's Physician's opinion because he was the only physician with an accurate history.
In Newcomer v. Workmen's Compensation Appeal Board (Ward Trucking Corp.), 547 Pa. 639, 692 A.2d 1062 (1997), our Supreme Court held that a medical expert's opinion is incompetent if it is based solely on inaccurate or false information. See also Chik-Fil-A v. Workers' Comp. Appeal Bd. (Mollick), 792 A.2d 678 (Pa. Cmwlth. 2002) (testimony of claimant's expert was incompetent where expert relied on claimant's inaccurate history and agreed on cross-examination that if claimant's history was not complete and accurate his opinion would be invalid).
However, this Court repeatedly holds that a medical expert's opinion is not rendered incompetent unless it is solely based on inaccurate or false information. Namani v. Workers' Comp. Appeal Bd. (A Duie Pyle), 32 A.3d 850 (Pa. Cmwlth. 2011), appeal denied, ___ Pa. ___, 47 A.3d 849 (2012); Casne v. Workers' Comp. Appeal Bd. (Stat Couriers, Inc.), 962 A.2d 14 (Pa. Cmwlth. 2008); Am. Contracting Enters. v. Workers' Comp. Appeal Bd. (Hurley), 789 A.2d 391 (Pa. Cmwlth. 2001). Further, the opinion of a medical expert must be viewed as a whole. Namani. Inaccurate information will not defeat that opinion unless it is dependent on those inaccuracies. Id. The fact that a medical expert does not have all of a claimant's medical information goes to the weight to be given to that expert's testimony, not its competency. Degraw v. Workers' Comp. Appeal Bd. (Redner's Warehouse Markets, Inc.), 926 A.2d 997 (Pa. Cmwlth. 2007); see also Institute for Cancer Research v. Workers' Comp. Appeal Bd. (McDermott) (Pa. Cmwlth., No. 1878 C.D. 2012, filed June 18, 2013) (McCullough, J.). The question of the competency of evidence is one of law and fully subject to our review. Namani.
Here, the opinions of Claimant's Physician are clearly competent to support the WCJ's grant of Claimant's reinstatement petition. Regarding causation, Claimant's Physician opined that Claimant's 2003 work injury and ensuing surgery during which Dr. Perlmutter removed the posterior horn of the medial meniscus resulted in the development of post-traumatic arthritis, causing Claimant's current, ongoing disability. F.F. Nos. 48-50; R.R. at 149a, 152a, 156a-57a, 173a-74a. Claimant's Physician based this opinion on his first-hand observations when he performed arthroscopic knee surgery on Claimant in 2009, as well as his review of Dr. Perlmutter's records and the photographs of the surgery performed by Dr. Perlmutter. F.F. Nos. 34, 38; R.R. at 148a-52a. SWIF's Physician agreed with Claimant's Physician's opinion as to causation. F.F. Nos. 59, 64; R.R. at 211a-14a, 217a. SWIF's Physician based his opinion primarily on Claimant's physical condition and the near total removal of Claimant's meniscus in 2004 as documented by Claimant's Physician. R.R. at 215a-17a, 220a-21a, 226a. Norguard's argument that the opinions of Claimant's Physician and SWIF's Physician are incompetent under Newcomer on the ground they were based solely on an inaccurate or false history is meritless.
Additionally, and contrary to Norguard's arguments, in crediting Claimant's Physician's opinion regarding the 2004 surgery, the WCJ did not rely solely on the fact that Claimant's Physician and SWIF's Physician rendered similar opinions while Norguard's Physician's opinion differed. Rather, the WCJ explained (with emphasis added):
The opinions of [Claimant's Physician] concerning the surgery performed by Dr. Perlmutter [were] found to be credible and persuasive and more persuasive to the extent [they] conflicted with the opinions of [Norguard's Physician] and/or [SWIF's Physician] for two main reasons. First, [Claimant's Physician] was the only physician who testified who had actually performed arthroscopy surgery upon the Claimant's left knee. Second, the qualifications of [Claimant's Physician] with respect to conditions of the knee is found to be more impressive than those of [SWIF's Physician] or [Norguard's Physician]. ...F.F. No. 25. Clearly, the WCJ could credit the opinions of Claimant's Physician and SWIF's Physician and reject the opinions of Norguard's Physician opinion on these bases. See Daniels v. Workers' Comp. Appeal Bd. (Tristate Transp.), 574 Pa. 61, 78, 828 A.2d 1043, 1053 (2003) (among the "countless objective factors" that may support a decision to accept certain medical expert evidence, while rejecting competent, conflicting evidence are that "an expert may have had less interaction with the subject" and an expert may be "less qualified than the opposing party's expert ...")
Additionally, the WCJ stated (with emphasis added):
This [WCJ] has reviewed the record as a whole and finds the testimony of [Claimant's Physician] credible, persuasive and accepts the same as fact. [Claimant's Physician's] opinions are credible because his diagnosis is well grounded in and supported by the diagnostic studies, Claimant's history, the mechanism of injuries, the records of Claimant's other treating physicians, specifically Dr. Perlmutter as well as the opinions of [SWIF's Physician]. Specifically, [Norguard's Physician] does not dispute that Claimant sustained an injury on May 11, 2009, or that Claimant has osteoarthritis from the October, 2003 work injury. [Norguard's Physician's] opinion that Claimant fully recovered from the October, 2003 work injury, is rejected as neither credible nor persuasive. Significant in this determination is the fact that [Norguard's Physician] is the only physician who rendered such an opinion. Additionally, [Norguard's Physician's] opinion in this regard is not supported by the medical records, specifically the records of Dr. Perlmutter which evidence that Claimant continued to receive treatment for the 2003 work injury and was receiving said treatment at the time of the May 11, 2009, work injury. ...F.F. No. 73. In short, the WCJ provided several detailed reasons for his decision to credit the opinions of Claimant's Physician over those of Norguard's Physician.
Also, contrary to Norguard's assertions, based on his thoughtful review of the record, the WCJ explained Claimant was not asymptomatic between 2004, following his first surgery, and his second work injury in 2009. Indeed, the WCJ made several detailed findings regarding Claimant's history during this timeframe, based largely on the 2008 treatment records of Dr. Perlmutter, and the record sufficiently supports those findings. See F.F. Nos. 26-28, 54, 72; R.R. at 78a, 101a-04a, 230a-32a, 233a-34a, 235a-38a, 242a-45a. Thus, Norguard's argument that Claimant did not experience pain or symptoms in his left knee prior to the May 2009 work incident lacks merit.
C. Attorney Fees/Section 410 of the Act
As a final issue, Norguard asserts the Board erred in finding it engaged in an unreasonable contest despite Claimant's testimony that he returned to work within weeks of the 2004 surgery and continued to perform his pre-injury job with no complaints and no pain until his second injury in 2009.
Norguard argues its contest of this matter was, at all times, reasonable. It contends the totality of the circumstances here show there were and still are several disputed issues, including which injury caused the need for medical treatment and which injury resulted in periods of disability. There were conflicting medical opinions. Norguard asserts Claimant's own testimony of returning to work for several years without any problems while performing his full duties until 2009 directly contradicted the reinstatement petition he filed. In fact, Claimant pled alternative theories in his claim and reinstatement petitions that clearly made all parties' contest reasonable. Norguard argues all of these factors raised genuine issues that legitimately had to be litigated before the WCJ. Norguard asserts it did not contest the reinstatement merely to harass Claimant.
Norguard points out the parties voluntarily entered into a Section 410 order in which they each paid Claimant compensation, which also shows the parties were not trying to harass Claimant but instead waiting for the WCJ to render a decision based on the conflicting testimony as to which insurer was liable for indemnity and medical benefits. Thus, Norguard maintains the WCJ here should have determined it presented a reasonable contest.
Under Section 440 of the Act, a WCJ is required to impose attorney fees and litigation costs in addition to the award of compensation benefits unless a reasonable basis for the contest is established. Guard Ins. Grp. & Railworks v. Workers' Comp. Appeal Bd. (York & TIG Premier Ins.), 864 A.2d 1285 (Pa. Cmwlth. 2005). The reasonableness of an employer's contest is a question of law that must be based on the facts found by the WCJ. Id. An employer's contest will be considered reasonable if there is a genuinely disputed issue. Id. The employer bears the burden of establishing a reasonable contest. Wood v. Workers' Comp. Appeal Bd. (Country Care Private Nursing), 915 A.2d 181 (Pa. Cmwlth. 2007).
Added by the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. §996.
In Morgan, we held that where there is no dispute that a claimant sustained a work injury and the only remaining issue is which one of the employer's two insurers is liable, there can be no reasonable contest. Under these circumstances, a reasonable contest does not exist because a controversy between an employer's two insurers as to which insurer is liable is "a controversy among parties on the same side, not a controversy between [the] [e]mployer and [the] [c]laimant." Id. at 1378.
However, where the claimant himself raises the issue of which insurer is liable for his benefits by filing separate petitions on separate theories of liability, a WCJ's entry of an interlocutory order under Section 410 of the Act ends the insurer's contest with the claimant. Bittinger v. Workers' Comp. Appeal Bd. (Lobar Assocs., Inc.), 932 A.2d 355 (Pa. Cmwlth. 2007). Thus, the entry of the Section 410 interlocutory order ends the liable insurer's exposure to unreasonable contest attorney fees. Id.
Citing Morgan, the WCJ here granted unreasonable contest fees on the ground that disputes between insurers cannot establish a reasonable contest. On appeal, however, the Board reduced the award of attorney fees, determining the contest became reasonable as of the WCJ's entry of the interlocutory order under Section 410 of the Act. The Board explained:
[I]n both Lamberson [v. Workmen's Compensation Appeal Board (U.S. Silica), 654 A.2d 668 (Pa. Cmwlth. 1995)] and Bittinger, the court distinguished between the joinder of a second insurer by a named insurer and the filing of separate petitions, alleging alternative theories of liability, by a claimant. Where the claimant implicated both insurers and there was a reasonable contest as between the two insurers, the court in Bittinger concluded that the insurers' contest against the claimant ended when they agreed to a Section 410 order. The Bittinger court distinguished Morgan as a case where the first insurer joined the second and forced the claimant to prove his case, despite having no reasonable basis to contest the injury. 932 A.2d at p. 359. In Lamberson, the court observed that both insurers were joined by the claimant and were entitled to defend the action.
Upon review ... we agree that the present matter is distinguishable from Morgan. Claimant brought petitions against both insurers on alternative theories and each insurer had medical evidence which, if believed, would have defeated Claimant's petition against it. In such a case, the mechanical application of Morgan imposes a burden on the insurers' right to defend the action, as both insurers will be exposed to awards of counsel fees for an unreasonable contest where each insurer's defense against the petition brought against it is, in fact, reasonable.
We therefore agree ... that the entry of the Section 410 order, to which neither insurer objected, ended the controversy regarding Claimant's entitlement to benefits and left open a reasonable contest as to liability for those benefits. Bittinger. ...Bd. Op., 3/6/13, at 8-9. Upon review, we discern no error in the Board's analysis.
To that end, we agree with the Board that Bittinger controls. There, the claimant sustained work injuries for which he received benefits from the employer's insurer, St. Paul Fire & Marine Insurance Company (St. Paul). The claimant subsequently returned to light-duty work. Several years later, the claimant sustained a second injury to a different body part, and was disabled for one month. The claimant filed claim and review petitions against St. Paul seeking to have the second injury recognized as part of the original work injuries. Alternatively, the claimant filed a claim and joinder petitioner against Travelers Insurance Company (Travelers), the employer's insurer at the time of the later injury, asserting he suffered a new injury. During the course of the proceedings, the WCJ issued an interlocutory order pursuant to Section 410 of the Act mandating the payment of past compensation for the period of disability and all reasonable medical expenses. Ultimately, the WCJ issued a decision denying the petition filed against the employer and Travelers, and granting the petitions filed against the employer and St. Paul. Additionally, the WCJ awarded unreasonable contest fees until the date the claimant received the interlocutory order under Section 410. The Board affirmed, and the claimant appealed.
This Court affirmed. We determined the WCJ and the Board properly awarded attorney fees until the entry of the interlocutory order, explaining (with emphasis added):
In [Morgan], the claimant filed a petition to set aside a final receipt against his employer and its insurer. The employer and insurer denied the allegations and joined a second insurance company as an additional defendant, contending that it was the responsible carrier. Based on the insurers' agreement that the claimant was disabled, the WCJ issued a Section 410 [i]nterlocutory [o]rder, setting aside the final receipt and directing both insurers to pay one half of the claimant's benefits. Ultimately, the WCJ held the employer and the initial insurer liable for payment of the benefits, as well as attorney fees for an unreasonable contest. On appeal, we affirmed the WCJ and the Board and rejected the insurer's argument for limited attorney's fees from the date of the entry of the [i]nterlocutory [o]rder because the employer's action forced the claimant to prove his case despite the fact that the employer had no basis for contesting the injury.Id. at 358-59.
Unlike the facts in [Morgan], St. Paul did not join Travelers as an additional defendant to avoid paying [the] [c]laimant benefits. [The] [c]laimant raised the issue of which insurer was liable for his injury by filing separate petitions on inconsistent theories of liability against Travelers and St. Paul. While we agree that [the] [e]mployer/St. Paul's contest was unreasonable during the time that they contested the payment of benefits, their subsequent agreement to the [i]nterlocutory [o]rder ended their contest with [the] [c]laimant. The initial question of liability, however, remained and St. Paul had a reasonable basis to contest liability for the injury as against Travelers. It would be unfair to penalize St. Paul for resolving the issue of liability when [the] [c]laimant was the party that raised it. Therefore, the WCJ correctly determined that [the] [c]laimant was not entitled to attorney fees for an unreasonable contest beyond the date that [the] [c]laimant received the [i]nterlocutory [o]rder.
Like the claimant in Bittinger, Claimant here raised the issue of which of two insurers was liable for benefits by filing separate claim and reinstatement petitions, alleging different theories of liability. As in Bittinger, we agree that Employer/Norguard's contest was unreasonable during the time they contested the payment of benefits; however, as in Bittinger, Employer/Norguard's subsequent agreement to the interlocutory order ended their contest with Claimant. Thus, the Board properly awarded unreasonable contest attorney fees only for the period before entry of the WCJ's interlocutory order under Section 410. Bittinger.
Indeed, while the medical experts differed on their opinions regarding causation, all of the experts, including Norguard's Physician, agreed Claimant was disabled from his pre-injury position. See Reproduced Record at 181a. --------
For all the foregoing reasons, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 6th day of September, 2013, the order of the Workers' Compensation Appeal Board is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge