Opinion
No. 986 C.D. 2014 No. 1044 C.D. 2014
05-11-2015
Debra Gieniec, Petitioner v. Workers' Compensation Appeal Board (Palmerton Hospital and HM Casualty Insurance Company), Respondents Palmerton Hospital, Blue Mountain Health Systems and HM Casualty Insurance Company, Petitioners v. Workers' Compensation Appeal Board (Gieniec), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Debra Gieniec (Claimant) petitions for review from an order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of a Workers' Compensation Judge (WCJ) granting Claimant's three petitions filed in the nature of claim petitions, denying Claimant's penalty petitions, and denying the termination petition filed by Palmerton Hospital, Blue Mountain Health Systems (Employer), and its insurer, HM Casualty Insurance Co. (collectively, Respondents). Respondents cross-appeal the denial of their termination petition and challenge the WCJ's award of unreasonable contest fees.
Claimant is the designated petitioner pursuant to this Court's order dated August 11, 2014, consolidating the above-captioned matters.
Claimant filed three separate claim petitions corresponding to three injury dates. However, because Respondents accepted the initial work injury, the WCJ considered the claim petitions as "review petitions" as to the nature, extent and duration of Claimant's injury. See WCJ's Op., 1/30/12, Concls. of Law Nos. 2, 4-5.
On appeal, Claimant asserts the WCJ erred by not finding that she is entitled to indemnity benefits. She requests a remand to the WCJ to make a specific finding in this regard. Respondents argue Claimant did not prove any injuries beyond the initial injury from which she fully recovered, such that the WCJ erred in granting Claimant's review petitions. Respondents also contend the WCJ made independent medical determinations that are not supported by competent medical evidence. Upon review, we affirm.
I. Background
For over 20 years, Claimant worked for Employer as a nurse, where her duties included patient care, such as patient transfers and administering medications, as well as secretarial tasks. She began working in the intensive care unit (ICU) in January 2005. Her work schedule was 7:00 a.m. to 7:00 p.m., three days one week and four days the next week.
While dressing a patient's wound, Claimant suffered a work-related soft tissue injury to the lower back on January 9, 2007 (2007 Injury). She described the pain as radiating down her left leg initially, and later the lateral aspect of both legs. Claimant returned to work less than 13 work days later, with a 25 to 30 pound lifting restriction. Reproduced Record (R.R.) 43a-45a.
Claimant alleged a second injury on February 12, 2009 (2009 Injury), when she attempted to restrain an obese patient who was attempting to get out of bed. Claimant did not report the incident until April 24, 2009, when she noted increased pain and spasms in her lower back and pain down both her legs, as well as numbness in her feet. Claimant reported the radicular pain symptoms were worse down her left leg, where her pain reached the foot, whereas on the right leg the pain radiated to the knee.
Claimant alleged a third injury to her lower back on September 19, 2010 (2010 Injury). This injury occurred when she and a co-worker attempted to move a patient weighing 276 pounds.
As to the 2007 Injury, Respondents filed a temporary notice of compensation payable (TNCP), describing it as a "low back strain." WCJ Op., 1/30/12, Finding of Fact (F.F.) No. 2. However, Respondents issued a notice of workers' compensation denial (NCD) the following day, alleging Claimant was not disabled as a result of the injury, and she did not miss more than 13 days of work. Id. Claimant received compensation for three days of wage loss.
As to the 2009 Injury, Respondents issued another NCD, asserting the injury was not work-related. Respondents did not issue a notice accepting or denying the 2010 Injury.
Claimant filed claim petitions for each of the three alleged injuries. She also filed penalty petitions relating to the 2007 Injury and 2010 Injury, arguing Respondents did not timely respond. Respondents filed a termination petition regarding the 2007 Injury. A WCJ held three hearings on the petitions.
Claimant testified in person at the first two hearings, as well as by deposition. She denied any problems with her back prior to her 2007 Injury. She testified she received written restrictions regarding lifting after her 2007 Injury, which she provided to her supervisor. Claimant confirmed she did not receive any further written restrictions, and her current supervisor was not aware of Claimant's restrictions because she continued to perform her job. F.F. No. 6.c. When asked about her reduction in hours, Claimant acknowledged she did not provide a reason to Employer.
Claimant presented the deposition testimony of Maxime Gilles Gedeon, M.D. (Treating Physician), who is board certified in anesthesiology and pain management. Treating Physician first began treating Claimant in February 2007, following her work injury, on a referral from Dr. Robert Grob, an orthopedic surgeon. At that time, Claimant reported she began to experience pain in her lower back that radiated down the left leg. She denied any prior back injury.
On examination, Treating Physician noted "decreased range of motion for all planes of Claimant's lumbar spine, tenderness on palpation of her left-sided lumbar facet joints, and tenderness on palpation of the left sacroiliac joint. [He] also noted straight leg raise testing was positive on the left." F.F. No. 8.a. Treating Physician testified Claimant returned to light duty on Dr. Grob's recommendation. The light-duty position included a restriction on lifting no more than 30 pounds. Treating Physician agreed with this restriction. R.R. at 142a.
He reported the results of a functional capacity evaluation (FCE) revealed Claimant "had an ... ability to lift, on occasional basis, the maximum of 40 pounds from the floor level to the knuckle level, and 30 pounds from the knuckle level to the shoulder level, and 35 pounds above the shoulder level." F.F. No. 8.c. Treating Physician agreed with these restrictions. Id.
Based on his physical examination, and the report from a January 16, 2007 MRI, Treating Physician's diagnosis was "back pain related to the work injury, lumbar disc protrusions at the L4-5 and L5-S1 level, left-sided lumbar radiculopathy, and lumbar facet syndrome." F.F. No. 8.a. He related this diagnosis to Claimant's 2007 Injury because "[t]he patient had denied any previous injury to her lower back or any type of back pain." F.F. No. 8.e. Although he acknowledged degenerative changes in Claimant's spine, he testified such degeneration would not cause pain radiating down the legs.
Treating Physician continued to treat Claimant for her condition through 2011. Her treatment plan included injections and prescriptions for Zanaflex and Percocet. Between February and March 2007, Claimant received three injections for pain, which significantly improved her condition. Claimant continued to receive injections in 2008 and 2009.
Treating Physician opined that the injuries in 2009 and 2010 were aggravations of the 2007 Injury. He did not believe they were new injuries when the symptoms were in the same distribution. F.F. No. 8. He also confirmed that "he never removed Claimant from work." Id.
In opposition and in support of their termination petition, Respondents presented the deposition testimony of Dr. Steven K. Groff (Respondents' Physician), who is board certified in orthopedic surgery. Respondents' Physician examined Claimant twice, once in 2008 (First IME) and later in April 2011 (Second IME).
Respondents' Physician testified that as of the First IME, Claimant could return to her job without restriction. However, he noted she would benefit from epidural injections, if necessary. His diagnosis as of the Second IME was "chronic lumbar strain, lumbar disc disease and spinal arthritis." F.F. No. 9.c. He testified Claimant fully recovered by his Second IME in April 2011.
Respondents' Physician also reviewed Claimant's medical history which indicated Claimant treated for low back pain and sciatica in August 2006, prior to her initial work injury. She also visited an emergency room in November 2006 and received a steroid injection for back pain. F.F. No. 9.d. This was contrary to Claimant's reports that she never suffered back pain prior to the 2007 Injury.
The WCJ credited Claimant's testimony regarding the three incidents and the symptoms she suffered as a result of her injuries. F.F. No. 10.a. In so doing, he noted: "In making this finding this [WCJ] is not unmindful of Claimant's denial that she had back symptoms prior to her 2007 work incident- a denial that, given the 2006 treatment records reviewed by [Respondents' Physician], does not appear accurate." Id.
The WCJ accepted as fact Treating Physician's testimony that Claimant was not recovered and needed additional treatment for her symptoms. The WCJ credited Treating Physician's testimony over that of Respondents' Physician to the extent the testimony conflicted regarding Claimant's recovery. However, the WCJ found "[Respondents' Physician's] diagnosis for Claimant of an aggravation of her underlying degenerative issues - including lumbar radiculopathy - and a chronic lumbar strain creditable and persuasive." F.F. No. 10.b. The WCJ noted Respondents' Physician described Claimant's 2007 Injury as an "aggravation of an underlying degenerative issue ..." Id.
Based on the credited medical evidence, the WCJ determined Claimant sustained lumbar radiculopathy and chronic lumbar strain as a result of the 2007 Injury, and found the 2009 Injury and 2010 Injury contributed to the lasting nature of Claimant's strain. F.F. No. 10.b. As a result, the WCJ concluded Claimant was entitled to causally related medical expenses. Concl. of Law No. 8. The WCJ did not award compensation relating to wage loss.
Ultimately, the WCJ granted Claimant's petitions as to the 2007 Injury, the 2009 Injury and the 2010 Injury, deeming them review petitions, and denied Respondents' termination petition. The WCJ also denied Claimant's penalty petitions. In addition, the WCJ awarded unreasonable contest fees in the amount of $2,493.75 corresponding to the attorney fees that accrued when Claimant's representation began until the date of the Second IME.
Both Claimant and Respondents appealed to the Board. Claimant appealed as to the WCJ's denial of indemnity benefits and denial of her penalty petitions. Respondents appealed as to the grant of Claimant's petitions for any injury beyond the recognized 2007 Injury, as to the denial of their termination petition, and as to the unreasonable contest fees. Respondents also argued the WCJ mischaracterized the medical evidence to reach his own independent conclusion.
The Board affirmed. Regarding Respondents' contentions, the Board determined the WCJ relied on the evidence submitted by Respondents' Physician to find that Claimant established the 2007 Injury, beyond a low back strain. The Board upheld unreasonable contest fees based on that medical evidence. As to Claimant's contentions, the Board reasoned Claimant did not connect her reduced hours to a work injury to justify indemnity benefits. The Board also noted penalty awards are discretionary.
Both parties then filed petitions for review to this Court.
II. Issues
On appeal, Claimant argues the WCJ erred in not awarding indemnity benefits when he found she suffered a reduction in earnings. Because the WCJ found she returned to work with restrictions and had not fully recovered, Claimant asserts that he should have awarded temporary total or partial disability benefits.
Our review is limited to determining whether an error of law was committed, whether necessary findings of fact were supported by substantial evidence, and whether constitutional rights were violated. Dep't of Transp. v. Workers' Comp. Appeal Bd. (Clippinger), 38 A.3d 1037 (Pa. Cmwlth. 2011).
On cross-appeal, Respondents contend the WCJ erred in finding Claimant met her burden of proving any injury beyond the recognized 2007 Injury of a low back strain. Respondents also assert the WCJ's findings regarding Claimant's condition constitute unsupported, independent medical determinations. Lastly, Respondents argue Claimant is not entitled to unreasonable contest fees.
III. Discussion
A. Indemnity Claim
Claimant's primary argument is that she is entitled to benefits corresponding to wage loss related to her injuries. Specifically, she asserts the WCJ erred in failing to make a finding as to wage loss when he found she reduced her hours; she seeks a remand for that purpose.
Because Claimant does not quantify the wage loss or specify the source of her entitlement, we surmise the wage loss for which she seeks compensation relates to the only loss specified, her reduction in hours.
For purposes of workers' compensation, "disability is a term synonymous with a 'loss of earning power.'" Scobbie v. Workmen's Comp. Appeal Bd. (Greenville Steel Car Co.), 545 A.2d 465, 466 (Pa. Cmwlth. 1988). Claimant bears the burden of proving a disability as a result of her work injury. Sch. Dist. of Phila. v. Workers' Comp. Appeal Bd. (Lanier), 727 A.2d 1171 (Pa. Cmwlth. 1999) (claimant must always produce medical evidence to establish disability from employment). Further, a claimant must establish the wage loss is work-related if the connection between the alleged period of disability and the recognized work injury is not obvious. Sacred Heart Hosp. v. Workers' Comp. Appeal Bd. (Mutis), 703 A.2d 577 (Pa. Cmwlth. 1997) (medical evidence must establish causation when years passed since the initial injury).
A claimant who can still perform her pre-injury job despite her restrictions bears the burden of proving causation between her alleged wage loss and work injury. Dougherty v. Workers' Comp. Appeal Bd. (QVC, Inc.), 102 A.3d 591 (Pa. Cmwlth. 2014); Klarich v. Workers' Comp. Appeal Bd. (RAC's Ass'n), 819 A.2d 626 (Pa. Cmwlth. 2003). That a claimant suffered a work-related injury does not establish she suffered a disability, as injury and disability are two legally distinct terms. Sch. Dist. of Phila. Similarly, that the WCJ found Claimant has not fully recovered from her injuries does not establish a disability in the legal sense. Id.
Because Claimant continued to perform her pre-injury job at the same pre-injury schedule, she bears the burden of proving a causal relationship between the loss of earnings from her reduction in hours and the work injury. Id. Claimant did not sustain her burden here.
Claimant was out of work from January 12, 2007 through January 21, 2007, which corresponds to less than 13 work days. F.F. No. 2. There is no dispute Claimant received medical and indemnity benefits related to her 2007 Injury. See Concl. of Law No. 2.
From our review of her brief, Claimant appears to seek indemnity benefits correlating to her reduction in hours in May 2010. Claimant alleges she lost wages because she reduced her hours from 84 hours per pay period to 72 hours per pay period. However, she does not connect her reduction of 12 hours per pay period to the 2007 Injury, or to the later aggravations.
First, there is the lack of a temporal relationship between the reduction in hours and any injury. Claimant maintained the same work restrictions since she sustained the 2007 Injury. R.R. at 99a. In 2007, she returned to work with a lifting restriction that allowed her to continue her pre-injury job. Significantly, she did not request a reduction in hours immediately after returning to work. Rather, she continued working in her pre-injury capacity, without any reduction in hours for a number of years. R.R. at 57a-58a. She requested the reduction in hours almost three-and-a-half years after sustaining the 2007 Injury, and more than one year after the 2009 Injury in May of 2010. Id. at 56a, 78a. Given these lapses, Claimant needed to prove a causal relationship. Sacred Heart Hosp.; see also Odd Fellow's Home of Pa. v. Workmen's Comp. Appeal Bd. (Cook), 601 A.2d (Pa. Cmwlth. 1991).
Second, Claimant did not explain her reduction in hours as related to her injury. When asked why she reduced her hours, she testified, "I want to keep my back and keep living and watch my daughter graduate." R.R. at 56a. She framed it in terms of life choices. She did not testify she was unable to continue working the same pre-injury schedule she kept since the 2007 Injury.
Third, there is no medical evidence connecting her reduction in hours to her injury. At the time she reduced her hours in May 2010, Claimant did not submit any medical note to Employer substantiating a correlation between her reduced hours and her injury. R.R. 77a. She acknowledged she did not provide Employer with any explanation for her reduction in hours. F.F. No. 6.b; R.R. 76a.
The only evidence regarding the reason for reducing her hours to which Claimant draws this Court's attention is her own testimony. See Pet'r's Br. at 15. Other than Claimant's testimony, there is no indication in the record that any of Claimant's physicians recommended a reduction in the number of hours. She does not cite any corroborating medical evidence. Her testimony that her family physician told her to reduce her hours to 6 days per pay period is not competent medical evidence. See Cardyn v. Workmen's Comp. Appeal Bd. (Heppenstall), 534 A.2d 1389, 1390 (Pa. 1987) (issue is "not merely whether claimant was injured, but whether the injury caused him to be disabled; and where the causal connection between the injury and the disability is not obvious, more is required than a claimant's subjective testimony."); Odd Fellow's Home.
In sum, Claimant did not submit any competent medical evidence that she could not continue performing her pre-injury job at the same wages. Therefore, she did not sustain a compensable wage loss. Sch. Dist. of Phila.
Nevertheless, Claimant asks this Court to remand to the WCJ so that he can make a specific finding regarding her entitlement to indemnity benefits. From our review, a remand is unnecessary.
In his decision, the WCJ recognized that Claimant sought partial disability benefits from the 2007 Injury and ongoing. See F.F. Nos. 2-4. However, other than the initial indemnity payment made for the few days of work she missed in 2007, for which Claimant received $300.00 (F.F. No. 5.b.), Claimant did not receive any indemnity benefits corresponding to wage loss.
We discern from the WCJ's findings as a whole that he did not find a disability. As the prevailing parties, Respondents are entitled to the benefit of the most favorable inferences drawn from the record. See Lehigh Cnty. Vo-Tech Sch. v. Workmen's Comp. Appeal Bd. (Wolfe), 652 A.2d 797 (Pa. 1995). We conclude that the WCJ considered and rejected Claimant's entitlement to indemnity benefits. He found Claimant did not provide an explanation to Employer for her reason for reducing her hours. F.F. 6.b. She provided no medical note, and there was no medical evidence establishing an injury-related need for the reduction. As the Board noted, Claimant's current supervisor was unaware she had any physical limitations because she performs her regular job. Bd. Op., 5/16/2014, at 15.
We agree with the Board that Claimant did not produce adequate evidence to establish any entitlement to wage loss benefits. Odd Fellow's Home. Because denial of an indemnity claim is supported by the substantial evidence of record that Claimant continued performing her pre-injury position for years without any alleged loss of earnings, there is no reason for a remand.
B. Medical Evidence
Respondents filed a termination petition after the Second IME, alleging Claimant fully recovered from her work injury based on Respondents' Physician's opinion. They assert that by relying on only the diagnostic part of his opinion, and rejecting his opinion regarding recovery, the WCJ performed his own medical analysis. Respondents contend the WCJ cannot select portions of diverging medical opinions to support his findings. We disagree.
In support of their position, Respondents cite two cases: City of Pittsburgh and UPMC, Benefit Management Services, Inc. v. Workers' Compensation Appeal Board (Wilson), 11 A.3d 1071 (Pa. Cmwlth. 2011) and Cromie v. Workmen's Compensation Appeal Board (Anchor Hocking Corp.), 600 A.2d 677 (Pa. Cmwlth. 1991). Both cases are readily distinguishable on their facts.
In Wilson, the employer appealed a Board decision that expanded the claimant's work-related injury to include aggravation of preexisting cervical degenerative disc disease. In part, the injury was expanded based on an independent medical examination report that stated an aggravation in error. The physician who performed the examination testified that the critical word "not" was omitted from his report, and he confirmed that his report should have stated "I do [not] feel that this work injury caused an aggravation of the preexisting degenerative condition." Wilson, 11 A.3d at 1074. We reasoned the finding of an aggravation was not supported by competent medical evidence because the physician recanted the earlier report and noted the error. Recanted reports are not competent evidence. We also noted the record did not support expanding the work injury when the treating physician did not treat the claimant for the expanded condition.
The circumstances in Wilson are not present in this case. Here, the WCJ relied on medical evidence submitted by two experts who opined as to Claimant's condition within a reasonable degree of medical certainty. The WCJ did not rely on recanted reports inconsistent with the medical testimony to reach a specific result. In addition, Treating Physician continues to treat Claimant for the lumbar radiculopathy and chronic lumbar strain, which is her diagnosed condition.
In Cromie, the claimant argued the referee's findings were inconsistent with the medical evidence. The claimant's physician testified regarding the cause of his injury, and that he had not fully recovered. However, despite crediting the physician's testimony to find a work injury, the referee found the claimant had fully recovered as of a specific date. Because these findings were inconsistent, the claimant asserted the referee erred. This Court agreed the referee erred, but for different reasons. We explained the referee made his own medical judgment as to the nature of the claimant's injury "based on no medical evidence in the record." Id. at 679.
We agree with Respondents that Cromie holds a WCJ cannot render independent medical judgments. However, we disagree with their premise that the WCJ here rendered an independent medical judgment to find that Claimant's need for treatment is ongoing.
Both Cromie and Wilson stand for the principle that a WCJ's findings must be supported by competent medical evidence. From our review, the WCJ's findings as to Claimant's diagnoses and as to her recovery are supported by competent medical evidence.
Medical testimony is considered unequivocal and competent if the medical expert, after establishing a proper foundation, testifies within his professional opinion that a certain fact or condition exists. Campbell v. Workers' Comp. Appeal Bd. (Pittsburgh Post-Gazette), 954 A.2d 726 (Pa. Cmwlth. 2008). A medical expert's testimony "will be found to be equivocal if it is based only upon possibilities, is vague, and leaves doubt." Kurtz v. Workers' Comp. Appeal Bd. (Waynesburg Coll.), 794 A.2d 443, 449 (Pa. Cmwlth. 2002).
Specifically, based on his examinations and his review of Claimant's medical records, Respondents' Physician described Claimant's condition a "mild spondylolistheses, lumbar disc disease, small lumbar disc rupture and lumbar radiculopathy." R.R. at 216a. He noted in the First IME that it was a work-related condition. R.R. at 229a. Although "she could benefit from intermittent epidural injections," he opined that "operative treatment wasn't required." Id. at 217a. He noted the Second IME revealed "diminished flexibility of the lumbar spine in all planes." Id. at 219a. Based on the Second IME, he diagnosed Claimant's condition as "chronic lumbar strain, lumbar disc disease and spinal arthritis." Id. at 220a. Further, he testified the 2009 Injury and 2010 Injury "represented mild and limited aggravations of underlying issues from before." Id. This constitutes competent medical evidence.
As to ongoing treatment, Treating Physician testified he treated Claimant approximately every two to three months between 2008 and 2011. R.R. at 150a. He opined her subsequent injuries were an aggravation of her 2007 Injury. Id. at 152a. As to Claimant's prognosis, he noted he would expect to see "reaggravation of her symptoms, causing recurrent pain shooting down into her legs." Id. at 153a. He testified Claimant is not fully recovered as she will require lumbar epidural steroid injections in the future. Id. at 154a.
Significantly, Respondents do not argue that there is no medical evidence to support the WCJ's finding that Claimant's injury is ongoing. Rather, they assert Treating Physician's opinion as to recovery must be rejected because the WCJ rejected his opinion as to the nature of the injury. This is a matter of credibility, not competency.
We note it is solely for the WCJ as fact-finder to assess credibility and resolve evidentiary conflicts. Waldameer Park, Inc. v. Workers' Comp. Appeal Bd. (Morrison), 819 A.2d 164 (Pa. Cmwlth. 2003). As such, the WCJ may reject the testimony of any witness, in whole or in part. Id. This principle applies equally to testimony of medical experts. Griffiths v. Workers' Comp. Appeal Bd. (Red Lobster), 760 A.2d 72 (Pa. Cmwlth. 2000). A single medical expert's testimony is a reasonable basis upon which a WCJ may base a finding of fact despite conflicting evidence. Bethenergy Mines, Inc. v. Workmen's Comp. Appeal Bd. (Skirpan), 572 A.2d 838 (Pa. Cmwlth. 1990), aff'd, 612 A.2d 434 (Pa. 1992).
That the WCJ credited one expert as to the diagnoses, and a different expert as to recovery does not constitute an independent medical determination. Here, the WCJ did not credit Respondents' Physician's testimony that Claimant fully recovered. Instead, the WCJ relied on Treating Physician's testimony that the injury was ongoing. F.F. No. 10.b. That is within the WCJ's province. Waldameer Park. Further, the WCJ explained that he resolved the conflicting experts' opinions regarding recovery in Treating Physician's favor because he was in a better position to evaluate Claimant's condition having examined Claimant on numerous occasions from 2007 through 2011. F.F. No. 10.b.
Because the findings are based on competent medical evidence, Respondents' allegations lack merit.
C. Nature of Injury
Next, Respondents argue Claimant did not meet her burden of proving injuries beyond a lumbar strain. They contend Claimant did not establish causation given her pre-existing back pain with radiculopathy. That she did not disclose her pre-existing condition to Treating Physician compromised his opinion.
Where a claimant suffers a pre-existing condition, unequivocal medical evidence is required to show the alleged work injury was a substantial contributing factor in relation to her condition. Chicoine v. Workmen's Comp. Appeal Bd. (Transit Mgmt. Servs.), 633 A.2d 658 (Pa. Cmwlth. 1993). However, where a pre-existing condition exists, a claimant may be entitled to compensation when the competent medical evidence shows the disability resulted from the injury, and not from the normal progression of the pre-existing condition. Halaski v. Hilton Hotel, 409 A.2d 367 (Pa. 1979) (explaining it is sufficient if the injury materially contributed to the disability).
In making their argument, Respondents focus almost solely on Treating Physician's testimony. Treating Physician testified he related his diagnoses to the 2007 Injury because Claimant reported she did not experience back pain prior to the incident. F.F. No. 8.e. Therefore, his testimony regarding causation was not legally sufficient as it was not based on accurate information.
Respondents' focus on Treating Physician is misplaced. It disregards the fact that the WCJ did not accept Treating Physician's diagnoses, or his opinion that "Claimant's 2007 Injury is the actual cause of her lumbar disc protrusions." F.F. No. 10.b. Instead, the WCJ accepted Respondents' Physician's diagnoses of "an aggravation of her underlying degenerative issues - including lumbar radiculopathy - and chronic lumbar strain." F.F. No. 10.b. Specifically, he testified "the work event was an aggravation of an underlying degenerative issue ... more of a lumbar strain issue ... [and] a substantial factor" to her overall radicular disc condition. R.R. at 226a. Relevantly, Respondents' Physician was aware of Claimant's prior back pain at the time he rendered his diagnoses.
Claimant may meet her burden using evidence of an adversary. SKF USA, Inc. v. Workers' Comp. Appeal Bd. (Smalls), 728 A.2d 385 (Pa. Cmwlth. 1999) (noting employer's medical evidence is available to meet claimant's burden). This includes medical evidence. Id.
Respondents' Physician relied on his two examinations of Claimant and on his review of Claimant's medical records and her medical history. R.R. at 216a. Thus, his testimony regarding the nature of Claimant's injury as beyond a lumbar strain is competent. His opinion that the 2009 Injury and 2010 Injury aggravated Claimant's condition is likewise competent medical evidence. Id. at 220a.
Contrary to Respondents' characterization, the WCJ did not find that the 2009 Injury or the 2010 Injury constituted "new injuries." Resp'ts' Br. at 44. The WCJ specifically noted that both experts opined they were not new injuries, but rather aggravations of Claimant's existing chronic lumbar strain. F.F. No. 9.e; R.R. at 152a and 220a.
It is a question of fact for the WCJ to determine whether or not the subsequent injuries materially contributed to Claimant's condition. SKF USA. In reviewing the medical testimony as a whole, particularly as to Claimant's ongoing treatment with Treating Physician, the WCJ found the aggravations substantially contributed to her condition. Pa. State Univ. v. Workers' Comp. Appeal Bd. (Rabin), 53 A.3d 126 (Pa. Cmwlth. 2012) (that contributing factor was "substantial" may be inferred without using specific phrase). Although the WCJ did not use the word "substantial" in his finding that the 2009 Injury and 2010 Injury contributed to her injury, it can be inferred from his conclusion.
Respondents' Physician's testimony substantiated the work-relatedness of the 2007 Injury. The WCJ credited Claimant's testimony about aggravation of her symptoms following the 2009 and 2010 Injuries. Credited medical evidence supports the WCJ's finding that the aggravation symptoms related back to the 2007 Injury. R.R. 146a-152a.
Based on the competent medical evidence submitted by both parties, we discern no error in the WCJ's grant of Claimant's review petitions.
D. Unreasonable Contest Fees
Respondents also assert the WCJ erred in awarding unreasonable contest fees. Specifically, they argue Claimant's non-work-related, pre-existing condition provided a reasonable basis for contesting her claim. They emphasize Claimant did not mention her prior back pain or sciatica to any of her treating physicians, which compromised the accuracy of their opinions.
Section 440(a) of the Workers' Compensation Act provides that where a claimant succeeds in a litigated case, reasonable counsel fees are awarded against the employer, as a cost, unless the employer meets its burden of establishing facts sufficient to prove a reasonable basis for the contest. This section "is intended to deter unreasonable contests of workers' claims and to ensure that successful claimants receive compensation undiminished by costs of litigation." Dep't of Transp. v. Workers' Comp. Appeal Bd. (Clippinger), 38 A.3d 1037, 1049 (Pa. Cmwlth. 2011) (citation omitted).
Act of June 2, 1915, P.L. 736, added by the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. §996(a). --------
The issue of whether an employer's contest is reasonable is a legal conclusion based on the WCJ's findings of fact. Yespelkis v. Workers' Comp. Appeal Bd. (Pulmonology Assocs. Inc.), 986 A.2d 194 (Pa. Cmwlth. 2009). The reasonableness of an employer's contest depends on whether the contest was prompted to resolve a genuinely disputed issue or merely to harass the claimant. Id. An employer's contest may be considered reasonable when, at the time of the decision to contest a claim or shortly thereafter, an employer possesses medical evidence supporting its position. Yeagle v. Workers' Comp. Appeal Bd. (Stone Container Corp.), 630 A.2d 558 (Pa. Cmwlth. 1993).
Here, Employer did not have medical evidence supporting its position until the Second IME in April 2011. Based on the First IME, Respondents' Physician opined that Claimant suffered a work-related injury in 2007, more than a lumbar strain, which was aggravated again in 2009 and 2010. Respondents' Physician did not opine Claimant fully recovered from the recognized injury. To the contrary, he noted she continued to benefit from treatment.
The medical evidence, including that of Respondents' Physician, supported Claimant's claim as of the date of the 2007 Injury. Therefore, the WCJ correctly concluded that Respondents did not reasonably contest Claimant's claim based on the medical evidence at that time.
Respondents did not possess medical evidence in support of their position until April 2011, when they received the Second IME. In the Second IME, Respondents' Physician opined that Claimant fully recovered from her injuries and could return to work without any restrictions. Thus, the WCJ concluded Respondents' contest to Claimant's claims became reasonable as of the Second IME. See Arnold v. Workers' Comp. Appeal Bd., (Baker Indus.), 859 A.2d 866 (Pa. Cmwlth. 2004) (unreasonable contest may become reasonable based on medical evidence acquired during litigation; WCJ properly refuses to award unreasonable contest fees after date corresponding to evidence of full recovery).
Respondents do not contest the amount of the counsel fees and the WCJ found them fair and reasonable. F.F. No. 12. Thus, any challenge as to the amount of the fees has been waived. See Huynh v. Workers' Comp. Appeal Bd. (Hatfield Quality Meats), 924 A.2d 717 (Pa. Cmwlth. 2007). Accordingly, we uphold the award of $2,493.75 in counsel fees.
IV. Conclusion
For the foregoing reasons, we affirm the Board's order which affirmed the WCJ's order granting Claimant's review petitions, and denying Respondents' termination petition and their challenge to the fees awarded for unreasonable contest. Because the findings support the denial of Claimant's indemnity claim, and Claimant did not connect wage loss to her work injury, as was her burden, a remand to the WCJ to make a specific finding as to indemnity benefits is unwarranted.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 11th day of May, 2015, the order of the Workers' Compensation Appeal Board is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge