Opinion
No. 2106 C.D. 2014
07-14-2015
Icelsa Contreras, Petitioner v. Workers' Compensation Appeal Board (Alliance Re-Manufacturing), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Icelsa Contreras (Claimant) petitions for review of the October 30, 2014 order of the Workers' Compensation Appeal Board (Board), which affirmed the order of a Workers' Compensation Judge (WCJ) granting the termination petition filed by Alliance Re-Manufacturing (Employer).
Claimant worked for Employer as a laborer, lifting and packing brake calipers and attaching labels to boxes. Claimant ceased working for Employer on March 12, 2010, due to complaints of bilateral wrist pain and tingling. Employer issued a notice of temporary compensation payable (NTCP) dated June 16, 2010, describing Claimant's injury as bilateral carpal tunnel syndrome. Employer took no further action within the required 90 days and the NTCP automatically converted into a notice of compensation payable. Claimant sought treatment from John Taras, M.D., who eventually performed surgery on Claimant's left wrist on June 2, 2010, and surgery on her right wrist on September 1, 2010. (WCJ's Findings of Fact Nos. 1-3).
On December 6, 2010, William Kirkpatrick, M.D., a board certified orthopedic surgeon, performed an independent medical examination of Claimant. Following this examination, Dr. Kirkpatrick opined that Claimant had fully recovered from her work injury and could return to her pre-injury job without restrictions. (WCJ's Finding of Fact No. 5). Employer thereafter filed its petition to terminate Claimant's compensation benefits. Claimant filed an answer denying the allegations of Employer's petition. The matter was assigned to the WCJ, who held multiple hearings.
Dr. Kirkpatrick also has an additional certification in hand surgery. (WCJ's Finding of Fact No. 5.)
In support of its termination petition, Employer presented the March 28, 2011 deposition testimony of Dr. Kirkpatrick. Dr. Kirkpatrick testified that he reviewed Claimant's work duties, her injury, and all related medical treatment. He noted that Claimant complained of continued numbness, tingling, and radiating pain in both hands during the examination, but his objective findings did not support those complaints. Instead, he stated that Claimant had full range of motion in her shoulders, elbows, and wrists; that Claimant did not exhibit any swelling of the hands, muscle atrophy, dystrophic changes, clawing, or triggering in either hand; and that all Tinel's and median compression testing was negative. Dr. Kirkpatrick opined that Claimant had fully recovered from her work injury and could return to work without restrictions. On cross-examination, Dr. Kirkpatrick acknowledged that Claimant's pre-injury job involved the use of her hands and that Claimant's treating physician, a Dr. Rodriguez, had not released Claimant to return to work. (WCJ's Findings of Fact Nos. 5, 5A.)
Employer also introduced a report and surveillance video from Blue Diamond Investigation, which undertook surveillance of Claimant in April and May of 2011. The report stated that Claimant was observed walking up to six miles while pushing a stroller with her hands; carrying items in both hands; and entering the Injury Rehabilitation Center on May 9, 13, 16, and 25, 2011, for only four to ten minutes at a time. The video confirms the written report. Employer further presented billing statements for these respective dates reflecting various treatments and exercises performed on these dates, including range of motion exercises, acupuncture, and contrast baths. (WCJ's Finding of Fact No. 6.)
The WCJ noted that Claimant received treatment at the Injury Rehabilitation Center, where Daisy Rodriguez, M.D., and her brother, George Rodriguez, M.D., both work. (WCJ's Decision at 4 n.2.) However, the billing statements do not identify which doctor treated Claimant.
Claimant testified through an interpreter that her pre-injury job required use of an air pressure gun to stamp labels on boxes. She stated that despite her surgeries, her hands still hurt and she routinely experiences numbness and tingling in both hands. Claimant noted that she is currently treating with a new physician, who utilizes hot wax treatments to help ease her symptoms. Claimant also testified that she takes four pills a day and does not believe that she can return to her pre-injury job. Claimant stated that she treated with Dr. Daisy Rodriguez, not Dr. George Rodriguez, at the Injury Rehabilitation Center, and that she received treatment during each visit there. Claimant agreed that Dr. Taras had released her to return to work. (WCJ's Finding of Fact No. 9.)
Claimant had originally scheduled a deposition of Dr. Daisy Rodriguez for July 6, 2011, but the deposition never took place. Claimant attempted to submit the November 16, 2011 written report of Scott Jaeger, M.D., whom Claimant saw for a consultation that day, but counsel for Employer raised a hearsay objection, which the WCJ sustained. (WCJ's Finding of Fact No. 8.) The WCJ stated that, in addition to being hearsay, the report was submitted late, noting that Employer closed its case with the admission of Dr. Kirkpatrick's March 28, 2011 deposition testimony and that Claimant failed to present any medical evidence in the six hearings and 14 months since that time. (Notes of Transcript (N.T.), July 31, 2012, at 6-7.) The WCJ referenced the need to enforce the regulations "at some point" and proceeded to close the record in the case. Id. at 7-14.
Claimant alleged that opposition from Employer's counsel was the reason for such delay. (Notes of Transcript, July 31, 2012, at 7.)
By decision and order dated February 12, 2013, the WCJ granted Employer's termination petition, effective December 6, 2010. In reaching his decision, the WCJ credited the testimony of Dr. Kirkpatrick and rejected Claimant's testimony as not credible. The WCJ also noted that the surveillance video raises serious questions about Claimant's ability to use her hands and the treatment she received at the Injury Rehabilitation Center. The WCJ noted that Claimant violated section 131.63(c) of the Special Rules of Administrative Practice and Procedure Before Workers' Compensation Judges (Special Rules), which states, in pertinent part, that "[t]he deposition of a medical expert testifying for a responding party shall be taken within 90 days of the date of the deposition of the last medical expert testifying on behalf of the moving party." 34 Pa. Code §131.63(c) (emphasis added). Claimant appealed to the Board, which affirmed the WCJ's decision.
On appeal to this Court, Claimant argues that the WCJ erred in precluding her from presenting medical evidence based upon a violation of section 131.63(c) of the Special Rules. We disagree.
Our scope of review is limited to determining whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence, and whether constitutional rights were violated. DeGraw v. Workers' Compensation Appeal Board (Redner's Warehouse Markets, Inc.), 926 A.2d 997 (Pa. Cmwlth. 2007).
Section 131.63(c) of the Special Rules provides as follows:
The deposition of a medical expert testifying for the moving party shall be taken within 90 days of the date of the first hearing scheduled unless the time is extended or shortened by the judge for good cause shown. The deposition of a medical expert testifying for the responding party shall be taken within 90 days of the date of the deposition of the last medical expert testifying on behalf of the moving party.34 Pa. Code §131.63(c) (emphasis added). Additionally, section 131.63(f) of the Special Rules provides that "[i]f a party fails to abide by the time limits established by this section for submitting evidence, the evidence will not be admitted, relied upon or utilized in the proceedings or the judge's rulings." 34 Pa. Code §131.63(f). Further, section 131.3(a) of the Special Rules permits a WCJ to modify any provision, 34 Pa. Code §131.3(a), and section 131.12(a) of the Special Rules specifically permits a WCJ to modify time limits, stating that:
Except for answers to petitions as set forth in § 131.33 (relating to answers except answers to petitions for joinder and challenge proceedings), the time fixed or the period of time prescribed in this chapter may, in the exercise of sound
discretion and for good cause, be shortened or extended by the judge upon the judge's motion or at the request of a party.34 Pa. Code §131.12(a).
In the present case, the deposition of Employer's medical expert, Dr. Kirkpatrick, was conducted on March 28, 2011. In accordance with section 131.63(c) of the Special Rules, Claimant had 90 days from this date to take the deposition of her own medical expert. According to the transcript of the WCJ's May 17, 2011 hearing, Claimant had scheduled the deposition of Dr. Rodriguez, her treating physician, for July 6, 2011. However, Claimant never submitted this deposition testimony. Instead, at the WCJ's March 13, 2012 hearing, approximately a year after Employer took Dr. Kirkpatrick's deposition, Claimant informed the WCJ that Dr. Rodriguez had decided not to testify. By this time, nearly a year had elapsed since Dr. Kirkpatrick's deposition. The WCJ had held six hearings between March 28, 2011, and March 13, 2012, and at no point did Claimant request an extension of time or advise the WCJ of any problems with scheduling the deposition of her medical expert.
Claimant contends that the delay in submitting medical evidence "was due to a variety of factors," none of which were her fault and which established 'good cause shown.' (Claimant's Brief at 8.) Claimant states that Dr. Rodriguez's office cancelled the deposition once due to an emergency, the court reporter failed to show for the rescheduled deposition, and on another occasion the deposition was stayed because of an objection by Employer's counsel.
Claimant notes that Employer's request for supersedeas was granted and asserts that Employer was not prejudiced by the delay in presenting medical evidence. Claimant also contends that "the WCJ's discretion in waiving or modifying the Special Rules is subject to whether or not a party is prejudiced", (Claimant's brief at 7), citing Nevin Trucking v. Workmen's Compensation Appeal Board (Murdock), 667 A.2d 262 (Pa. Cmwlth. 1995).
In Nevin Trucking, the claimant sought to introduce 15 medical bills at the last of three hearings before the WCJ. The employer objected on the basis of hearsay and on the basis that such introduction was a violation of section 131.61 of the Special Rules. The WCJ permitted the introduction of 10 of these bills, finding that the treatment referenced therein was causally connected to the claimant's work injury and were reasonable and necessary. The WCJ later ordered the employer to pay these bills.
However, while Claimant relies on Nevin Trucking, she offers no discussion of its facts or its analysis to demonstrate how or why it supports her argument, and indeed, it does not. In concluding that the WCJ did not err in waiving the requirements of the Special Rules by letting the claimant introduce certain medical bills, we merely observed that the employer in Nevin Trucking had "not shown any prejudice as a result . . . ." Id. at 270.
More important, in the present case, Claimant never requested any modification or waiver, or advised the WCJ of any problems with the scheduling. The issue was first discussed at the WCJ's March 13, 2012 hearing, nearly one year after Dr. Kirkpatrick's deposition, and Claimant finally sought to introduce a written report from Dr. Jaeger at the WCJ's July 31, 2012 hearing. At that point, the WCJ opted to preclude Claimant from presenting any medical testimony.
Although Claimant emphasizes the humanitarian purpose of the Workers' Compensation Act and that borderline interpretations are to be construed in the injured party's favor, our review of the record confirms that Claimant neither complied with section 131.63(c) of the Special Rules, nor requested modification or waiver. Under these circumstances, we conclude that the WCJ did not abuse his discretion in precluding Claimant from submitting medical evidence approximately 16 months after it was due.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4; 2501-2708. --------
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 14th day of July, 2015, the order of the Workers' Compensation Appeal Board, dated October 30, 2014, is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge