Opinion
No. 1911 C.D. 2011
10-11-2012
Spencina Hunt, Petitioner v. Workers' Compensation Appeal Board (Northwestern Human Services), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Spencina Hunt (Claimant) petitions for review of the September 19, 2011 order of the Workers' Compensation Appeal Board (Board), which, after rehearing, amended and affirmed its prior order affirming the decision of a workers' compensation judge (WCJ) to deny Claimant litigation costs pursuant to section 440(a) of the Workers' Compensation Act (Act). We affirm.
Act of June 15, 1915, P.L. 736, as amended, added by the Act of February 8, 1972, P.L. 25, 77 P.S. §996.
On September 14, 2004, Claimant began working for Northwestern Human Services (Employer) as a residential counselor. On November 28, 2004, Claimant injured her back while transferring a resident from a wheelchair to the shower. Claimant reported her injury, received medical treatment, and was released to limited duty with restrictions on weight lifting and bending. Although Employer failed to file any documents with the Bureau of Workers' Compensation (Bureau) at that time, Employer paid Claimant's medical bills for treatment of a lumbar strain and sprain and provided Claimant modified work, which she continued to perform until September 2005. Claimant did not work from September 25, 2005, to October 23, 2005, and she left work again on November 24, 2005. Claimant was released to return to work as of December 8, 2005. Although modified work remained available, Claimant did not return to work, except for two brief periods in September and December of 2006. (WCJ's Findings of Fact Nos. 1-6, 9.)
In May 2006, Claimant filed a claim petition alleging a November 28, 2004 work injury in the nature of "discogenic lumbar radiculopathy in the left L5 nerve root, mechanical low back symptomology, and thoracic herniated discs at T9, T10 and T11;" Claimant sought partial disability from December 2, 2004, to December 8, 2005, and total disability thereafter. (Reproduced Record (R.R.) at 1a.) She also filed a penalty petition alleging that Employer failed to issue Bureau documents, failed to promptly investigate her work injury, and failed to pay benefits in a timely manner. (R.R. at 5a.) Employer filed an answer which acknowledged the work injury as a lumber strain and sprain but denied that Claimant was disabled as a result of the injury. (Employer's brief, Exhibit D-1.)
In July 2006, Employer filed a notice of compensation denial, setting forth the same acknowledgement of the work injury and denial of disability. (R.R. at 7a.) In December 2007, Employer filed a petition for utilization review (UR), contesting whether treatment provided by Sofia Lam, M.D., was causally related to the work injury. Id. Claimant filed a second penalty petition on August 7, 2008, alleging that Employer violated the Act by failing to pay Dr. Lam's medical bills despite a UR determination in her favor, (R.R. at 12a), and by filing a notice of compensation denial rather than a medical only notice of compensation payable (NCP). (R.R. at 19a.)
The petitions were consolidated for a hearing before the WCJ. Dr. Lam testified that she first examined Claimant on July 1, 2005, with regard to complaints of persistent pain in her low back that was radiating down both legs. Dr. Lam stated that the examination revealed diminished ranges of motion in Claimant's lumbar spine, tenderness over the facets from L2 through S-1 and over the right sacro-iliac joint, multiple trigger points and positive straight leg-raising on the left. She testified that an MRI showed significant degenerative disc disease, disc bulge at L4-5 and impingement of the thecal sac on the L5 nerve root, and disc herniation at T9 -10 and T10-11. Based on her examination and the subsequent MRI, Dr. Lam concluded that Claimant suffered from lumbar radiculopathy with main focus in the left L5 nerve distribution, mechanical low back symptoms, and thoracic disc herniations at T9-10 and T10-11 with paravertebral spasm due to the November work injury. However, Dr. Lam permitted Claimant to continue working from July 2005 to December 2005. (WCJ's Findings of Fact Nos. 9-12, 14.)
Richard Levenberg, M.D., a board certified orthopedic surgeon, testified concerning three independent medical examinations (IME) he conducted following the November 28, 2004 incident. He stated that, at the February 10, 2005 IME, he noted complaints of back pain but not of radiculopathy, disc herniation, or spondylolisthesis. However, Dr. Levenberg testified that x-rays taken in March 2005 showed grade I spondylolisthesis and that a subsequent exam on August 24, 2006, revealed a thoracic disc herniation. (WCJ's Findings of Fact Nos. 27, 29-31.)
Dr. Levenberg believed that Claimant had suffered a work related lumbar strain and sprain that had fully resolved by August 24, 2006. He stated that Claimant also suffered from spondylolisthesis and stenosis, which are degenerative conditions unrelated to the work injury. He added that Claimant's radiculopathy resulted from her spondylolisthesis and therefore also was unrelated to the work injury. (WCJ's Findings of Fact No. 28, 32.)
The WCJ accepted Dr. Levenberg's testimony as credible and convincing, (WCJ's Findings of Fact No. 44), and found that on November 28, 2004, Claimant suffered a work related lumbar strain and sprain with an exacerbation of preexisting degenerative conditions of the lumbar spine from which she had fully recovered as of August 24, 2006. (WCJ's Findings of Fact No. 50.)
Several of Claimant's former supervisors, Mary Ann Trotman, Beth Caraccio, Donna Jones, Shirley Howard, and Liz McCann, testified regarding the modified work Employer provided Claimant, including dusting, organizing clothing, straightening the contents of drawers, pulling holed socks, doing laundry, putting papers into loose-leaf binders, taking files out of boxes, shredding paper, setting up a book for an office, filing and updating resident books, and placing lab slips and medical notes in alphabetical order. The WCJ found these witnesses' testimony credible and determined that Employer promptly and diligently provided Claimant with modified work at all stages of her employment following her work injury. (WCJ's Findings of Fact Nos. 16, 17, 20-22, 41, 48.)
In addition, both Jones and Howard testified that Claimant suffered multiple asthma attacks during the fall of 2005, and they believed that Claimant left work due to these asthma attacks. Employer submitted corroborating medical records from Frankford Hospital, which indicated that Claimant's admissions on January 20, 2005, September 29, 2005, and November 23, 2005, were solely for treatment of asthma. The WCJ credited this evidence and determined that Claimant did not miss any time from work following her November 24, 2004 work injury until she was forced to do so by her asthma. The WCJ further found that Claimant was out from work solely because of her asthma. (WCJ's Findings of Fact Nos. 21, 22, 49, 52.)
Vickie Dekalb, who serviced Employer's account as a claims adjuster for Consolidated Risk Services, testified regarding Employer's UR and the payments Employer made toward Claimant's medical expenses. She stated that some of Claimant's medical expenses had been paid while others had not. She explained that Dr. Lam's epidural injection treatments administered on March 16, 2006, July 6, 2006, and September 28, 2006, were not paid based on the UR determination that only three yearly injections were reasonable and necessary and that six bills dated from March 2007 to September 2008, were not paid on the ground that treatment was not related to the work injury. Dekalb testified that a bill from March 2006 went unpaid because it had been accidently missed and stated that she did not know why a September 2005 bill remained unpaid. The WCJ fully credited Dekalb's testimony. (WCJ's Findings of Fact Nos. 34, 39, 45.)
In his June 8, 2009 decision, the WCJ found that, although Claimant did suffer a work-related injury on November 24, 2004, she suffered no loss of earning power as a result of the injury. He also concluded that an award of penalties was not warranted, recognizing that Employer violated the Act by failing to pay certain medical bills but characterizing the violation as harmless inadvertence. Moreover, reasoning that Claimant was awarded nothing more than she already had received, the WCJ concluded that Claimant had not prevailed in the litigation and was not entitled to litigation costs. Finally, the WCJ concluded that Employer presented a reasonable contest with respect to all petitions. (WCJ's Findings of Fact No. 53; WCJ's Conclusions of Law Nos. 1-3, 5-6.)
Claimant appealed to the Board, arguing that the WCJ's findings and conclusions were not supported by substantial competent evidence, were the product of prejudice and/or bias, and reflect an abuse of discretion. By decision and order dated March 25, 2011, the Board rejected Claimant's arguments and affirmed the WCJ's decision.
Claimant filed a petition for rehearing, requesting that the Board amend its opinion to address whether she was entitled to an award of litigation costs based on her partial success before the WCJ. The Board granted Claimant's petition for rehearing. In a September 19, 2011 decision, the Board amended its prior opinion and order to affirm the WCJ's decision not to award litigation costs and reaffirmed its earlier decision in all other respects. Claimant now petitions this Court for review.
Section 426 of the Act, added by the Act of June 26, 1919, P.L. 642, 77 P.S. §871, permits the Board to grant a rehearing as long as the request for rehearing is made within eighteen months of the Board's issuance of an opinion. The Board has broad powers to grant a rehearing and may do so when justice requires. Puhl v. Workers' Compensation Appeal Board (Sharon Steel Corp.), 724 A.2d 997 (Pa. Cmwlth. 1999).
Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
On appeal, Claimant argues that the WCJ erred in determining that Claimant did not prevail in the litigation. Specifically, Claimant contends that she succeeded in the litigation because the WCJ and the Board recognized that she suffered a compensable work injury and that Employer violated the Act. Claimant maintains that, having been partially successful, she should be awarded litigation costs. We disagree.
Section 440(a) of the Act states:
In any contested case where the insurer has contested liability in whole or in part, including contested cases involving petitions to terminate, reinstate, increase, reduce or otherwise modify compensation awards, agreements or other payment arrangements or to set aside final receipts, the employe or his dependent, as the case may be, in whose favor the matter at issue has been finally determined in whole or in part shall be awarded, in addition to the award for compensation, a reasonable sum for costs incurred for attorney's fee, witnesses, necessary medical examination, and the value of unreimbursed lost time to attend proceedings: Provided, That cost for attorney fees may be excluded when a reasonable basis for the contest has been established by the employer or the insurer.77 P.S. §996(a). Litigation costs are warranted when a claimant is at least partially successful before a WCJ. Watson v. Workers' Compensation Appeal Board (Special People in Northeast), 949 A.2d 949 (Pa. Cmwlth. 2008). In order to be deemed partially successful, a claimant must receive some financial benefit. Id.
The WCJ specifically found that Employer presented a reasonable contest, (WCJ's Findings of Fact No. 53; WCJ's Conclusions of Law No. 6), and Claimant does not seek to recover attorney's fees on appeal.
In Watson, the claimant was injured in the course of her employment when several chairs fell off a shelf and struck her on the head. In response to the claimant's claim petition, the employer acknowledged that she had suffered a work-related head contusion and that she was entitled to all reasonable and necessary medical expenses related to that injury. However, the employer denied that the claimant had suffered any disability. At the hearing, the WCJ agreed with the employer regarding the nature of the injury. The WCJ also determined that the employer had violated the Act by failing to issue an NCP, a medical only NCP, or a notice of compensation denial. However, the WCJ concluded that the claimant was not entitled to an award of litigation costs.
On appeal, this Court upheld the WCJ's determination. The Court found that the WCJ awarded the claimant no financial benefit beyond the medical expenses the employer previously agreed to pay. Similarly, no financial benefit was obtained as a result of the finding that the employer violated the Act. The Court concluded in Watson that, because the claimant received no financial benefit, she did not prevail in the litigation and was not entitled to an award of litigation costs.
Applying Watson to the facts in this case compels the same result. Here Employer acknowledged in its responsive pleading that Claimant had suffered a work-related lumbar strain and sprain. Further, shortly after the injury occurred, Employer agreed to pay all related reasonable and necessary medical expenses. Thus, the WCJ properly concluded that even though Claimant was found to have suffered from a work-related injury, that determination did not provide Claimant with anything more than she had already received. In addition, because no penalties were imposed, Claimant did not receive any financial benefit from the WCJ's finding that Employer violated the Act. Thus, pursuant to Watson, Claimant did not prevail in this litigation and is not entitled to litigation costs.
We also note that, because Employer acknowledged that Claimant had suffered a work-related injury, that issue was never actually contested. In Reyes v. Workers' Compensation Appeal Board (Amtec), 967 A.2d 1071 (Pa. Cmwlth. 2009), this Court held that a claimant must prevail on a contested issue in order to be eligible for an award of litigation costs. In that case, the claimant was injured in a work-related motor vehicle accident. He filed a claim petition, alleging that he suffered a compression fracture at T5, headaches, and pain in his low back, middle back, upper back, and neck as a result of the accident. The employer subsequently issued a notice of compensation denial acknowledging that the claimant sustained a work-related injury but disputing that he was disabled by his injury.
The WCJ found that the claimant's work injuries consisted of a soft tissue strain and sprain to his neck, mid back, and low back. However, because the employer did not dispute any of these injuries, the WCJ determined this finding did not resolve a contested issue as necessary to support an award of litigation costs. The Board affirmed, and on further appeal, this Court upheld the WCJ's conclusion.
Similarly, here, Employer never contested the fact that Claimant suffered a workrelated injury. Employer offered to pay medical costs immediately after the injury occurred and admitted that Claimant's injury was workrelated in its responsive pleadings.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 11th day of October, 2012, the order of the Workers' Compensation Appeal Board, dated September 19, 2011, is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge