Opinion
No. 128 C.D. 2014
07-09-2014
Darlene Gibbs, Petitioner v. Workers' Compensation Appeal Board (Domestic Linen Supply Co.), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Darlene Gibbs (Claimant) petitions for review from the order of the Workers' Compensation Appeal Board (Board) which affirmed the Workers' Compensation Judge's (WCJ) denial of the Claim Petition filed against Domestic Linen Supply Company (Employer).
On July 23, 2007, Claimant allegedly injured her lower back while pulling aprons from a bin, while working for Employer. Claimant subsequently reported to her supervisor that she was not feeling well and had to go home. Claimant visited the emergency room and several doctors for treatment. Claimant worked following the incident until September 4, 2007, when she delivered a doctor's note to Employer explaining that she could no longer work due to her back pain. On September 12, 2007, Travelers Insurance (Insurer) allegedly issued a Notice of Denial which was never entered on the record. Two years later, Liberty Mutual issued a Notice of Denial.
Claimant petitioned for benefits and alleged that the injury on July 23, 2007, caused her to be totally disabled from July 23, 2007, to July 23, 2010.
At a hearing before the WCJ on October 26, 2010, Claimant testified that she was putting linens inside bins on July 23, 2007 when she realized she wasn't feeling well and informed her supervisor that she was leaving. Notes of Testimony, October 26, 2010, (N.T.) at 13; Reproduced Record (R.R.) at 58a. Claimant went home to rest, and the next day, she went to the emergency room. N.T. at 14; R.R. at 59a. Claimant testified that she alerted Employer on July 24, 2007, that she would be out of work for a week. N.T. at 15; R.R. at 60a. Claimant continued to visit her primary care doctor before switching to a more specialized physician. She was out of work until August 17, 2007, when she returned to light and regular duty work with Employer. N.T. at 16-17; R.R. at 61a-62a. Claimant stopped working on September 4, 2007, and she delivered a disability note informing Employer that she was unable to work "due to severe back pain which appeared to be due to a large mass in her liver". N.T. at 27; R.R. at 72a. Exhibit E-1. Claimant testified that three years later, she still experiences strong pain in her back and legs and must take Percocet, Valium, and OxyContin for her pain. N.T. at 29-34; R.R. at 74a-79a.
Claimant presented the deposition testimony of Michael J. Schina, Jr. M.D. (Dr. Schina) on July 8, 2011. Dr. Schina practices Pain Management and saw the Claimant for the first time in September 2010. Deposition of Michael J. Schina, Jr., M.D., July 8, 2011, (Dr. Schina Deposition) at 10; R.R. 92a. Dr. Schina diagnosed Claimant with lumbar strain and sprain with a disc bulge at L4-5 and an annular tear and L4 radiculopathy on the left. Dr. Schina Deposition at 13; R.R. at 95a. Dr. Schina testified that he was aware Claimant had a mass on her liver, but denied that the mass caused her back pain. Dr. Schina Deposition at 34; R.R. at 116a. He acknowledged that Claimant's pain medications, injections, nerve stimulation, and physical therapy were reasonable and necessary treatments for her condition. Dr. Schina Deposition at 23; R.R. at 105a. Dr. Schina most recently examined Claimant on July 7, 2011, the day before his deposition, and indicated that Claimant was still in significant discomfort. Dr. Schina Deposition at 26; R.R. at 108a. He advised that there was not much work that Claimant was capable of performing, as she was only able to sit for fifteen minutes before taking an hour-long break to lie down. Dr. Schina Deposition at 43; R.R. at 125a.
Employer presented the deposition testimony of board-certified Orthopedic Surgeon, Scott A. Rushton M.D. (Dr. Rushton), on September 13, 2011. Dr. Rushton examined Claimant on September 28, 2010. Deposition of Scott A. Rushton, M.D., September 13, 2011, (Dr. Rushton Deposition) at 10; R.R. at 10a. Dr. Rushton examined Claimant and noted that her previous nerve tests (EMGs) (the first performed on July 23, 2007, and the second on February 19, 2008) showed completely opposite reports which were inconsistent with the diagnostic studies and with Claimant's complaints and examination. Dr. Rushton Deposition at 16-18; R.R. at 16a-18a. Dr. Rushton concluded that Claimant likely experienced a lumbar spine sprain and strain on July 23, 2007, but had fully recovered from the injury and was able to return to unrestricted work activities. Dr. Rushton Deposition at 18; R.R. at 18a. Dr. Rushton expressed that Claimant was in no need of further treatment. Dr. Rushton Deposition at 19; R.R. at 19a.
WCJ denied the Claim Petition on May 8, 2012, for want of statutory notice. The WCJ made the following Findings of Fact:
7. Based upon a review of the evidentiary record as a whole, this Judge finds Claimant's testimony credible to establish she may have sustained a lumbar spine sprain and strain as a result of her work activities on July 23, 2007. Claimant's testimony is not persuasive to establish she provided statutory notice of her injury. Furthermore, her testimony is not persuasive to establish she has been disabled as a result of any injury and that injury continued on/after September 28, 2010. Significant factors in this determination include and are not limited to the following:
a) I have observed Claimant's testimony at hearing on October 26, 2010, and while I find Claimant's testimony credible to establish she may have sustained an injury on July 23, 2007 in the form of a lumbar spine sprain and strain, I do not find her testimony credible to establish she has been unable to work since that time as a result of the injury and not credible to establish her injury continues.
b) A thorough review of Claimant's testimony reveals she did not provide statutory notice. Claimant told her supervisor she was leaving work because she did not feel well. The note Claimant acknowledged she presented to Employer did not reflect she sustained any work injury.
c) Dr. Schina's testimony has been rejected as not credible to establish Claimant sustained any disability as a result of any work injury and not credible to establish any injury continues and the nature of her injury.
d) Dr. Rushton's testimony has been accepted as fact.
8. Based upon a review of the evidentiary record as a whole, this Judge finds the testimony of Michael J.
Schina, Jr., M.D. is not credible to establish the nature of the Claimant's possible injury and not credible to establish she sustained any disability as a result of a work injury. Dr. Schina did not examine Claimant until September 2010, more than three years after her injury reportedly occurred. While Dr. Schina advised Claimant could not currently work, this testimony is not credible to establish Claimant was disabled on or about July 23, 2007 (three years before he began treating her). Furthermore, the only medical evidence submitted in this matter contemporaneous with Claimant's departure from work is the September 6, 2007 note from the Albert Einstein Center for Liver Disease reflecting Claimant should be on disability as a result of severe back pain that appeared to be caused by a large mass in her liver. Furthermore, Claimant has undergone extensive medical treatment in the form of medications, physical therapy and injections, yet she testified her condition has worsened, whereas Dr. Schina advised some of his diagnoses of Claimant had improved.WCJ's Decision, May 8, 2012, Finding of Fact (F.F.) No. 7-11 at 19-20. (emphasis added).
9. Based upon a review of the evidentiary record as a whole, this Judge accepts the testimony of Scott A. Rushton, M.D. as fact. Dr. Rushton examined Claimant and provided concise and well[-]reasoned support for his opinions. Dr. Rushton is a board certified orthopedic surgeon who limits his treatment to spinal conditions. This Judge finds Dr. Rushton is in a better position to assess the condition of Claimant's spine than is Dr. Schina.
10. Claimant may have sustained a lumbar spine sprain and strain on July 23, 2007. Claimant did not establish she was disabled as a result of this injury or that her injury continued on and/or after September 28, 2010.
11. Claimant did not provide statutory notice of her injury.
Claimant appealed to the Board which affirmed.
Claimant contends that the Board erred when it affirmed the WCJ. Claimant contends that the WCJ's findings on lack of notice are not supported by the record and are contradicted by the Notice of Denial filed by Insurer with the Bureau of Workers' Compensation (Bureau).
This Court's review is limited to a determination of whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence, or whether constitutional rights were violated. Vinglinsky v. Workmen's Compensation Appeal Board (Penn Installation), 589 A.2d 291 (Pa. Cmwlth. 1991).
I. NOTICE BY CLAIMANT WAS NEVER GIVEN TO EMPLOYER OR ENTERED ON THE RECORD AS REQUIRED BY THE WORKERS' COMPENSATION ACT.
Section 311 of the Workers' Compensation Act (Act), 77 P.S. § 631, states that a claimant must give notice of her work-related injury to the employer within 120 days of the injury unless the employer had actual notice. Notice gives the employer a description of the injury and the date when the injury occurred.
Act of June 2, 1915, P.L. 736, as amended.
The determination is based on the totality of the circumstances, and a claimant is not required to give notice to employer in one single communication. Gentex Corp. v. Workers' Compensation Appeal Board (Morack), 23 A.3d 528 (Pa. 2011). However, the claimant bears the burden of proving notice and receipt of notice, and compliance with the notice provisions of the Act is a prerequisite to an award of compensation. Gribble v. Workers' Compensation Appeal Board (Cambria County Ass'n for the Blind), 692 A.2d 1160 (Pa. Cmwlth. 1997).
Claimant contends that she notified Employer and that the Notice of Denial issued by Employer's Insurer on September 12, 2007, proved that she gave notice. This Notice of Denial was filed with the Bureau, as required. 34 Pa. Code § 121.13. However, Claimant states that the Bureau did not properly enter the Notice on the record, preventing the WCJ from using the evidence in her Decision.
However, Bureau documents are not automatically part of the record of the adjudicated workers' compensation case. 7 West's Pa. Prac., Workers' Compensation § 13:40 (3d ed.). Employer states that Claimant was responsible for providing the WCJ with the 2007 Notice of Denial so it could be entered into evidence in accordance with 34 Pa. Code § 131.52(e). The Board cited Kimberly Clark Corporation v. Workers' Compensation Appeal Board (Bullard), 790 A.2d 1072 (Pa. Cmwlth. 2001) and 34 Pa. Code § 131.52(e) to show that evidence which does not appear in the record may not form the basis for a decision.
Where the claimant failed to submit into evidence of the IRE physician's report and other IRE documents, the Court would not consider such documents because "[i]t is a fundamental rule of appellate review that the Court is confined to the record before it..." Pryor v. Workers' Compensation Appeal Board (Colin Service Systems), 923 A.2d 1197 (Pa. Cmwlth. 2006).
In Kimberly Clark, Employer's Termination Petition predicated in part on a surveillance video, which was never entered into record, could not support a Termination of benefits.
Claimant contends that the present case is different because notice of denial is an official Bureau document, which is required to be filed with the Bureau, as opposed to a document offered by a party.
"The parties shall provide the judge with all documents required by law to be filed with the Bureau and which are relevant to issues in dispute with the same injury date and pertaining to the same claim. The Judge will place those documents in evidence along with any other documents required to be filed by law with the Bureau or prior judges and which the Judge deems relevant to the proceeding." 34 Pa. Code § 131.52(e).
Since Claimant never provided the 2007 Notice of Denial to the WCJ for admission into evidence, the WCJ acted properly when she did not include the Notice in her Findings, and the Board did not err when it affirmed the WCJ's Decision. Claimant's statement to Employer of "I'm not feeling good; I have to go home," and the doctor's note indicating that she could not return to work due to pain from a mass on her liver did not provide notice to Employer as required by 31 Pa. Code §131.52(e). Included in the record was a Notice of Denial issued by Liberty Mutual Insurance Company on April 18, 2009, submitted well after the 120 day deadline for notice to Employer required by Section 311 of the Act. 77 P.S. § 631.
The WCJ did not find Claimant's testimony sufficient to establish that Claimant provided Employer with the required notice. The WCJ is the ultimate finder of fact and her findings may not be disturbed if supported by substantial evidence. Harrell v. Workers' Compensation Appeal Board (Circle HVAC), 616 A.2d 1051 (Pa. Cmwlth. 1992). Substantial evidence is relevant evidence a reasonable mind might accept as adequate to support a conclusion. Bethenergy Mines, Inc. v. Workers' Compensation Appeal Board (Skirpan), 612 A.2d 434 (Pa. 1992). Therefore, Claimant is barred from recovery.
II. ASSUMING ARGUENDO THAT CLAIMANT DID PROVIDE STATUTORY NOTICE, THE WCJ'S DETERMINATION THAT DR. RUSHTON'S TESTIMONY WAS CREDIBLE AND DR. SCHINA'S TESTIMONY WAS NOT CREDIBLE WAS A SOUND BASIS FOR DENIAL.
Assuming arguendo that Claimant did provide adequate notice to Employer, Claimant bears the burden of proving all elements necessary to support an award. Innovative Spaces v. Workmen's Compensation Appeal Board (DeAngelis), 646 A.2d 51 (Pa. Cmwlth. 1994). To sustain an award, the claimant has the burden of establishing that he/she suffered a work-related injury and this injury resulted in disability. If the causal relationship between the claimant's work and the injury is not clear, the claimant must provide unequivocal medical testimony to establish a relationship. Holy Family College v. Workmen's Compensation Appeal Board (KYCEJ), 479 A.2d 24 (Pa. Cmwlth. 1984).
For workers' compensation purposes, disability is equated with a loss of earning power. Inglis House v. Workmen's Compensation Appeal Board (Reedy), 634 A.2d 592 (Pa. 1993). --------
The WCJ found Dr. Rushton's testimony credible to establish the extent of the Claimant's injury because he was a board-certified Orthopedic Surgeon with a particular focus on the spine and was in the best position to diagnose Claimant's spinal condition. Dr. Rushton opined that Claimant was completely healed from her injury and required no further treatment. Alternatively, the WCJ found Dr. Schina's testimony not credible to establish Claimant sustained any disability as a result of any work injury and not credible to establish any disability as a result of a work injury.
Based on the credibility determinations the WCJ properly determined that Claimant may have sustained a lumbar sprain and strain on July 23, 2007, but Claimant did not establish that she was disabled as a result of the injury, nor that the injury continued after September 28, 2010. Therefore, Claimant failed to shoulder her burden of proof.
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge Senior Judge Friedman concurs in result only. ORDER
AND NOW, this 9th day of July, 2014, the Order of the Workers' Compensation Appeal Board in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge