Opinion
No. 2464 C.D. 2010
11-30-2011
Annamma Jacob, Petitioner v. Workers' Compensation Appeal Board (Cardone Industries, Inc. and Phoenix Ins. Co.), Respondents
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES R. KELLEY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Annamma Jacob (Claimant) challenges the order of the Workers' Compensation Appeal Board (Board) that affirmed the Workers' Compensation Judge (WCJ) who granted Claimant's claim petition and awarded her total disability benefits from September 6, 2003, until September 24, 2003, awarded Claimant partial disability benefits from September 24, 2003, through March 17, 2004, terminated benefits as of March 18, 2004, denied Claimant's request for penalties, and denied Claimant's reinstatement petition. The Board affirmed, as modified, and included an award of $75.95 in litigation costs in favor of Claimant.
Claimant worked as a tester for Cardone Industries, Inc. (Employer). Claimant's job required her to work with a team that tested units coming from final assembly. On or about January 2, 2004, Claimant petitioned for benefits and alleged that she suffered "[h]ead, neck, shoulder, left upper extremity, left lower extremity" injuries when her "hair became entangled in a machine, jerking my head and body in a strained position" on September 5, 2003. Claim Petition, January 2, 2004, at 1. Claimant also sought a penalty of fifty percent for violations of Sections 406.1 and 435 of the Workers' Compensation Act (Act), 77 P.S. §§717.1(a) and 991.
Act of June 2, 1915, P.L. 736, as amended. Section 406.1 and Section 435 were added by the Act of February 8, 1972, P.L. 25.
I. Evidence in Support of Claim Petition.
Before the WCJ, Claimant testified through the aid of an interpreter fluent in Malayalam. Claimant described her work injury:
I was working as a tester. On that date, pulled me to another section for assembly work. When I was assembling one part was finished, when that part finished, I was going to get that part. When I was walking, I felt something was pulling me. So my shirt and hair was pulled to the right with my head. My shoulder and neck, everything turned to the right. Then hit the head and stopped me in a bend position. Then I cried. The body become [sic] so tight. Somebody came and shut off. Then I don't know what happened. Then I by myself sitting in the chair of MM Philip. I showed with my hand that I need water. Sonya then gave me water. Then I heard somebody told me it is Sonya who shut the machine off.Notes of Testimony, April 22, 2004, (N.T.) at 17. The day after the accident Claimant's "left side had numbness and pain and it's coming to the shoulder, neck and the whole left side . . . to the hand." N.T. at 18. From the time of the accident until October 22, 2003, the pain increased. N.T. at 20.
Claimant did not work between September 5, 2003, and September 25, 2003, because she had on her "whole left side I had a pain, swelling, and burning sensation." N.T. at 34-35. Claimant returned to work from September 25, 2003, to October 22, 2003, in a lighter duty job. N.T. at 35-38. When Claimant arose on the morning of October 23, 2003, she "felt the whole left side is going paralyzed. I could not get up. I could not walk to the Cardone clinic. My husband told the nurse I have this problem." N.T. at 39-40. Claimant has not worked since October 23, 2003. N.T. at 40. Since October 23, 2003, Claimant experienced "burning on the left side and pain. Intermittent when it happens. . . . Sometimes the pain comes . . . from the back of the head to the top of the head. It happens occasionally. . . . Left side of the neck on down to the shoulder there is swelling." N.T. at 50-51. With respect to her left shoulder, arm and hand, Claimant reported, "There is some decrease in the pain, but from time to time it becomes very severe." N.T. at 51.
On cross-examination Claimant admitted that she had no bleeding from the head or hair loss when her hair was caught in the machine. N.T. at 61. Claimant also stated that her shirt was caught in the machine. N.T. at 61-62.
Claimant subsequently testified by deposition over the objection of Claimant's counsel, who requested the WCJ to have Claimant appear in person. She brought a cream colored blouse to the deposition which she testified she wore at the time of the accident. Deposition of Annamma Jacob, March 3, 2005, (Claimant Deposition) at 22. Claimant testified that she could not perform the job offered to her in July 6, 2004, because she was not able to move her neck up and down or bend to tighten screws. Also, she could not lift objects between five and six pounds. Claimant Deposition at 31-33. Claimant could not begin work at 6:00 a.m., the scheduled start of the job:
Because of my pain, I could not sleep all the way through the night, and also I had to sleep only on one side mostly, and so I couldn't catch with my sleep, so I had to wake up late. That's the reason I could not get to the company that early in the morning.Claimant Deposition at 34.
Claimant called Brian Jeschke (Jeschke), claims adjuster for St. Paul Travelers Insurance Company and Employer's workers' compensation insurer at the time of the injury, per cross-examination. Jeschke testified that he would issue a notice of compensation denial if an employee was working the same hours and the same pay but was in a more restrictive job. Notes of Testimony, May 11, 2004, (N.T. 5/11/04) at 14. Jeschke testified that in this case the notice of compensation denial was issued because "[t]he medical documentation which I had at the time indicated that the injured worker was allowed to work with restrictions, the light duty type of job." N.T. 5/11/04 at 23. On questioning by Employer's attorney, Jeschke testified that he received several phone calls from Claimant's husband regarding her high blood pressure. N.T. 5/11/04 at 110. He also testified that Lawrence S. Axelrod, M.D. (Dr. Axelrod), on site medical director for Employer, raised the issue of high blood pressure in medical reports during the period from September 5, 2003, until October 23, 2003. N.T. 5/11/04 at 111. Jeschke also recalled that Claimant was treated for high blood pressure at a hospital on September 10, 2003. N.T. 5/11/04 at 112.
Dr. Axelrod did not indicate that Claimant's high blood pressure was work-related.
Amy Cohen (Cohen), a registered nurse, was present when an independent medical examination of Claimant took place on March 18, 2004. She described what took place during the examination.
Zachariah Jacob (Jacob), Claimant's husband, testified that Jeschke issued the notice of compensation denial before Jeschke received a form from Jacob explaining the injury. Notes of Testimony, September 16, 2004, (N.T. 9/16/04) at 16. Jeschke told him, "I am giving him more paperwork and he is - sorry, I am wasting his time." N.T. 9/16/04 at 16. On October 23, 2003, Claimant had severe pain and swelling to her neck and face. Jacob telephoned the nurse at Employer's clinic and arranged to see Dr. Axelrod. Dr. Axelrod advised her to see her family physician because of the chronic nature of her illness. Dr. Axelrod told Claimant not to return to work until she saw her family doctor. N.T. 9/16/04 at 15-18. On July 26, 2004, Jacob and Claimant went to Employer with a note from a physician concerning Claimant's physical restrictions. Jacob presented the note to Robert Sauer (Sauer), occupational safety and health compliance analyst and occupational certified hearing conservationist with Employer, but Sauer told him that no light duty job was available for Claimant. N.T. 9/16/04 at 34-36.
Claimant presented the deposition testimony of Sanjay Gupta, M.D. (Dr. Gupta), Claimant's treating physician and board-certified in anesthesiology and pain management. Dr. Gupta first examined Claimant on November 7, 2003. At that time Dr. Gupta took a history. In that examination Dr. Gupta found that Claimant's facet joints were tender in her neck and that the facet joints caused pain, she had weakness in her left hand, and was allodynia positive in the left hand. Dr. Gupta also noted mild swelling on the left hand, positive tenderness in the left AC joint, and positive muscle tenderness in the trapezius and deltoid muscles. Dr. Gupta Deposition at 15-16. After the initial examination, Dr. Gupta diagnosed Claimant:
Dr. Gupta explained that "Allodynia . . . is a term to describe when people have pain sensation with non-painful stimuli." Deposition of Sanjay Gupta, M.D., August 18, 2004, (Dr. Gupta Deposition) at 15.
Based on her diagnosis and the fact that number one was that she has facet-related pain because her facet maneuvers, facet loading maneuvers were positive for pain. They will also possibly be, in fact, . . . she may have had a stretching injury at the time of the initial injury to the brachial plexus. . . . And the third diagnosis which is complex regional pain syndrome . . . we also call it reflex sympathetic dystrophy.Dr. Gupta Deposition at 22-23.
Dr. Gupta referred Claimant to Dr. Cifelli, a neurosurgeon. Dr. Cifelli diagnosed Claimant with a nerve injury pattern comparable to brachial plexopathy and believed there might have been a cervical neck sprain. Dr. Gupta Deposition at 27-28. Dr. Gupta also referred Claimant to Dr. Sridhara, a board-certified physiatrist. Dr. Sridhara's findings essentially corroborated Dr. Gupta's. Dr. Gupta Deposition at 33-34. Dr. Gupta testified to a reasonable degree of medical certainty that Claimant's neck and shoulder were injured in the September 5, 2003, work incident. Dr. Gupta Deposition at 81. Dr. Gupta's final diagnosis was "definite cervical strain and sprain injury pattern causing facet related pain . . . Number 2, stretching injury to the brachial plexus; and Number 3, possible complex regional pain syndrome, and facet is also . . . called cervical . . . spondylosis." Dr. Gupta Deposition at 82. He also diagnosed Claimant with an irritation of the C5-C6 nerve root. Dr. Gupta Deposition at 82. Dr. Gupta believed that Claimant's blood pressure spiked in September and October 2003, due to her pain. Dr. Gupta Deposition at 83. Dr. Gupta testified that the September 5, 2003, work incident was the cause of Claimant's condition. Dr. Gupta Deposition at 83-84. He also testified that the injury "could have exacerbated her back condition which may not have been clear to her immediately after injury, because the pain got masked by other severe pain condition in the neck and the arm. But after feeling better in the neck, she may start feeling pain in the back." Dr. Gupta Deposition at 87. Dr. Gupta testified that Claimant could not perform her job as a tester. Dr. Gupta Deposition at 88-89. On cross-examination, Dr. Gupta admitted that he never issued a note which disabled Claimant from work. Dr. Gupta Deposition at 149-150.
Claimant presented the deposition testimony of JoJo K. Thazhathel (Thazhathel), a correctional officer in the Philadelphia prison system and a former employee of Employer. In November 2003, Jacob asked Thazhathel to pick up a letter from Claimant and take it to M.J. Thomas (Thomas), Claimant's supervisor. Deposition of JoJo K. Thazhathel, April 4, 2005, (Thazhathel Deposition) at 7-8. Thazhathel identified the letter as one written by Mary Wolnicki, M.D (Dr. Wolnicki). Thazhathel Deposition at 10. Dr. Wolnicki stated in the letter that Claimant was unable to return to work until further notice due to chronic neck, head, and shoulder pain which resulted from the September 5, 2003, injury. Thazhathel gave the letter to Thomas and told him "this is very important letter so you have to give to the HR [human resources]." Thomas told Thazhathel the day he received the letter that he had given the letter to human resources. Thazhathel Deposition at 11-12.
II. Evidence in Opposition to Claim Petition.
Sauer testified that Employer offered Claimant a full duty position on or about June 16, 2004. Notes of Testimony, October 5, 2004, (N.T. 10/5/04) at 20. The job offered to Claimant was "Preassembly distributors." N.T. 10/5/04 at 22. The job involved "the inspection, testing, and packaging of the distributors after they've been assembled." N.T. 10/5/04 at 22. Sauer testified that the description of the job was mailed to Claimant and she reported to work on the day requested with her husband. N.T. 10/5/04 at 26. Claimant's husband stated that Claimant had another note from a doctor and could not work. N.T. 10/5/04 at 26. Claimant was directed to see Dr. Axelrod. Sauer reported that Claimant never worked the job. N.T. 10/5/04 at 30. Sauer did not receive the letter and report from Dr. Wolnicki, which Jacob testified that he gave to Thazhathel to give to Thomas, to give to human resources. Deposition of Robert Sauer, March 17, 2005, at 5.
Employer presented the deposition testimony of Dr. Axelrod, board-certified in family medicine. Dr. Axelrod worked with Employer two days per week. On September 9, 2003, Dr. Axelrod examined Claimant following the September 5, 2003, injury. Dr. Axelrod reached the following diagnosis: "Well, she had no obvious objective traumatic signs of injury, but with all of the pain she had, I put down she had an apparent cervical strain and she also had headaches." Deposition of Lawrence S. Axelrod, M.D., August 25, 2004, (Dr. Axelrod Deposition) at 28. Dr. Axelrod provided Claimant with a soft cervical collar to wear and kept her off work. Dr. Axelrod Deposition at 28. Dr. Axelrod next saw Claimant on September 11, 2003. Claimant reported that she had attempted to go to physical therapy but the physical therapist found that her blood pressure was very high so she went to the emergency room and was treated for high blood pressure. Claimant, through Jacob, informed Dr. Axelrod that she had a preexisting history of hypertension, diabetes, insomnia, and heart palpitations. Claimant complained of headache pain, pain in the back of her scalp. Dr. Axelrod Deposition at 29-31. Dr. Axelrod found her condition essentially unchanged with "presumptive cervical straining and a traction injury on her scalp and she had these headaches." Dr. Axelrod Deposition at 34. He kept her off work but informed her that beginning on September 15, 2003, she could perform a light duty job. Dr. Axelrod prescribed one tablet of Vicodin three times a day for pain. Dr. Axelrod Deposition at 34.
On September 18, 2003, Dr. Axelrod again examined Claimant who had increased range of motion in the neck. Dr. Axelrod's updated assessment was a cervical strain and non-occupational blood pressure elevation. Dr. Axelrod Deposition at 37. Dr. Axelrod did not believe that Claimant was fit to work due to her high blood pressure. Dr. Axelrod Deposition at 38. On September 25, 2003, Claimant had close to 80 to 85 percent of her normal range of motion. Her blood pressure was still high at 170 over 108. Dr. Axelrod recommended that she return to work on a full duty assignment. Dr. Axelrod Deposition at 38-40.
On October 3, 2003, Dr. Axelrod did not disqualify her from work. He was concerned that she had chronic difficulties with anxiety and depression. Dr. Axelrod Deposition at 47. Dr. Axelrod next saw Claimant on October 9, 2003. She complained that her face was swelled. Dr. Axelrod did not see any swelling. Dr. Axelrod Deposition at 50-51. On October 23, 2003, Jacob informed Dr. Axelrod that Claimant was worse because she had swelling on the right side of her face when she awoke which disappeared by the time she arrived at work. And, the left side of her neck was excruciatingly painful. Dr. Axelrod Deposition at 52-53. Jacob also informed Dr. Axelrod that Claimant complained of mid and lower back pain and weakness of her left leg.
Upon examination Dr. Axelrod found that "she has an extraordinarily bizarre type of pain responses. I couldn't find any objective abnormality on her at all. And her pain response . . . simply defied medical explanation." Dr. Axelrod Deposition at 54. Dr. Axelrod opined that Claimant had fully recovered if she truly had a soft tissue muscle strain or a traction injury of her scalp and that there was a good likelihood that Claimant was malingering. Dr. Axelrod Deposition at 54-55. Dr. Axelrod opined that Claimant fully recovered as of October 23, 2003, from the September 5, 2003, work incident. Dr. Axelrod Deposition at 62. Dr. Axelrod again examined Claimant on July 6, 2004, prior to her scheduled return to work and found that there was no change in Claimant's condition and approved her for a distributor department pre-assembly job. Dr. Axelrod Deposition at 70.
Employer further presented the deposition testimony of Sonia Cochea (Cochea), the employee who freed Claimant from the machine. Cochea described the events of September 5, 2003:
When I was standing up like so over her, around my machine, I was over here, she was coming around, picking up magnets. I was standing up like so. And she was coming up here to cross over when I . . . stood up, she said, 'Ouch.'
I looked at her in a few seconds. I saw . . . that the machine was beginning to pick up her hair. I put my
hand in. I became scared to death since I didn't know how to turn off the machine. Some lady called me and screamed and said to me I had to press a red button, but I had my hand stopping it like so. I stopped the machine, and I took her hair out.Deposition of Sonia Cochea, September 27, 2004, (Cochea Deposition) at 14.
The hair was like this long, like so. But she was standing just like I was standing up. I took the hair out. It did not pull her hair. I didn't see any of that.
Cochea did not see any torn or ripped clothing on Claimant following the accident. Cochea Deposition at 23-24. Cochea believed Claimant was not wearing a light colored shirt when she was injured. Cochea Deposition at 58.
Employer also presented the deposition testimony of I. Howard Levin, M.D. (Dr. Levin), a board-certified neurologist. Dr. Levin initially examined Claimant on October 3, 2003, took a history, and reviewed medical records. At that time Claimant experienced the following conditions:
Occasional prickling-type pain over the crown of her head where she was hit and numbness on the left side of her head behind her ear. She also said she was having pain and a burning sensation in her neck and across her shoulders, which went into her upper back and upper arms, both of them.Deposition of I. Howard Levin, September 9, 2004, (Dr. Levin Deposition) at 36. Dr. Levin diagnosed Claimant with a cervical strain type injury and head contusion. He recommended a home exercise program and anti-inflammatory agents. Dr. Levin Deposition at 40-41. Dr. Levin testified within a reasonable degree of medical certainty that Claimant was able to perform her regular duties as a tester as of October 3, 2003. Dr. Levin Deposition at 42. Dr. Levin opined that Claimant's high blood pressure was unrelated to the work incident. Dr. Levin Deposition at 43.
Dr. Levin next examined Claimant on March 18, 2004. At that time Claimant had an occasional burning sensation and pain in the back of her neck, ear, temple, and eye. She had occasional pricking pains on top of her head. She also informed Dr. Levin that increased neck movement led to more pain. She also had burning pain down the length of her left arm and weakness in her left arm. She had pain in the left lower leg and heel. Dr. Levin Deposition at 45-47. Dr. Levin disagreed with the conclusion that Claimant suffered a stretch injury to the brachial plexus. Dr. Levin Deposition at 73. Dr. Levin opined that the mechanics of Claimant's work injury did not support an injury to the lower left leg, low back, or left heel. Dr. Levin Deposition at 78-79. Dr. Levin testified within a reasonable degree of medical certainty that Claimant was fully recovered from her work injury on March 18, 2004, and needed no more medical care or treatment as a result of the work injury. Dr. Levin Deposition at 80-81. Dr. Levin further opined that Claimant was capable of performing her time of injury job. Dr. Levin Deposition at 85.
Employer presented the deposition testimony of Daniel R. Roman (Roman), area manager of import distributors for Employer and formerly area manager of domestic and import distributors on September 5, 2003. Indirectly, Claimant was under his supervision. Roman conducted an investigation after Claimant was injured. He interviewed Cochea and Thomas, and examined the area. Deposition of Daniel R. Roman, November 23, 2004, (Roman Deposition) at 10-11. Roman testified that modified work was available to Claimant as of September 8, 2003. Roman Deposition at 50.
III. WCJ's First Decision.
The WCJ granted the claim petition in part and suspended benefits from September 6, 2003, through September 24, 2003. The WCJ awarded Claimant partial disability benefits for the wage loss between her actual earnings and her average weekly wage of $452.61 per week from September 25, 2003, through October 22, 2003. The WCJ suspended benefits as of October 23, 2003, through March 17, 2004. The WCJ terminated benefits as of March 18, 2004. The WCJ found Cochea, Dr. Levin and Sauer credible.
The WCJ made the following relevant findings of fact:
1 [Footnote No. 1] Claimant testified live before the court on April 22, 2004, at which time this Judge had the opportunity during the course of a three hour hearing to observe Claimant's manner and demeanor. . . . Claimant was present in the courtroom and observable to this Judge for the duration of the hearing. This Judge finds it compelling to offer the following reasons for her actions, in response to Claimant's counsel's challenge . . . to this court's ruling that Claimant's rebuttal testimony be conducted by deposition . . . rather than live before this court: This court finds Claimant's behavior on 4/22/04 not entirely consistent, and at times at variance, with her testimony. While this Judge does acknowledge that Claimant showed signs of distress during her testimony, the timing of Claimant's signals of distress did not correlate, in this Judge's determination, with any particular distressful event that Claimant was describing at the time. Normal indicators of whether a witness is
speaking honestly and truthfully, for instance, tearfulness when describing feelings, or when discussing changes that have resulted in one's life following an injury, are not present in this case. Claimant's tearfulness during her testimony was random and disconnected with the events that she was describing. This Judge deems therefore that ordinary indicators of a witness' veracity and trustworthiness, in this case, are unreliable and unusual. For the reasons that (a) this Judge had ample opportunity on April 22, 2004 to observe Claimant's manner and demeanor under oath, and (b) as a result, finds Claimant's behavior to be at best an equivocal indicator upon which she can measure the truthfulness and veracity of Claimant's testimony, this Judge, despite counsel's protests, does not believe that a further live appearance of the Claimant, for the reasons cited in this footnote, would be useful or necessary.
. . . .
7. This Judge finds that, although an occurrence did take place on September 5, 2003 whereby Claimant's hair was pulled into a machine, there is a dispute as to the mechanics of it. The Judge has carefully and thoroughly reviewed Claimant's testimony and Sonia Cochea's testimony, and finds it compelling to adopt Ms. Cochea's depiction of the occurrence for this reason: when Claimant was called to rebut Ms. Cochea's testimony that Ms. Cochea inserted her hand into the machine between Claimant's head and the machine before shutting the machine off, and unraveling the hair that was caught, Claimant's [sic] responded that she could not recall; she could not remember. On the other hand, Ms. Cochea, on page 15 of her deposition, added an element of reliability to her testimony when she testified: 'The machine picked it up like this, just like this much. And I put my hand like so, because the machine was going to grab my hand, and that's why I screamed.' This Judge deems the additional qualifier offered in Ms. Cochea's testimony, that not only was Claimant's hair in the machine, but her hand was in the machine as well, renders Ms. Cochea's version more credible than Claimant's testimony. . . . (Emphasis in original. Footnote omitted).
. . . .
8 [Footnote No. 8] The doctor's note that Mr. Jacob allegedly had with him on July 6, 2004 is not a part of the record. This judge finds no evidence of record that the note that Mr. Jacob presented to Cardone on July 6, 2004 indicated that Claimant was unable to work that day due to pain. Again, this Judge is minded that Claimant's own treating physician did not take her out of work completely. Additionally, Mr. Jacob acknowledged that he had no medical documentation on July 6, 2004 restricting Claimant from a 6:00 a.m. start time. On the other hand, Mr. Jacobs [sic] felt that a later start time would be better. . . . (Emphasis in original. Citation omitted).
. . . .
33. This Judge finds defense contention that it legitimately filed a Notice of Compensation Denial reasonable for the reason that it had medical evidence of record disputing the causation of Claimant's high blood pressure to the work related incident of September 5, 2003. It further had medical documentation indicating Claimant's release to work. This Judge finds defense contention that it denied certain allegations in Claimant's Claim Petition legitimate for the reason that Claimant included in her allegations work related injuries to her left lower extremity, allegations that Claimant's medical evidence fails to completely establish.
. . . .
36. This Judge adopts as her findings of Claimant's work related medical condition the opinions and testimony of Dr. Levin in their entirety, and where Dr. Levin's opinions and testimony are inconsistent with the opinions of Dr. Axelrod and Dr. Gupta, the opinions and testimony of Dr. Axelrod and Dr. Gupta are specifically rejected as not persuasive. The Judge determines that the opinions and testimony of Dr. Levin are the most reliable, competent, trustworthy and persuasive medical explanations for Claimant's work related medical condition in this matter because they are based upon what this judge determines is sound medical reasoning, a thorough review and knowledge of Claimant's medical records, and an impressive medical background which qualifies him as to most reliable medical physician in this matter. . . . (Footnote omitted).
37. Claimant presented the testimony of a nurse who attended the independent medical examination that Claimant had with Dr. Levin. This Judge has reviewed her testimony thoroughly and is less impressed with her stated observations than she is of Dr. Levin's testimony for the following very persuasive reason: she acknowledged that she has told Dr. Levin on other occasions, perhaps not in this case, but in others, that he conducts a very thorough neurological examination, and that he spends an hour with a patient, 'which is a good amount of time.' . . . (Citation omitted).WCJ's Decision, March 21, 2006, Footnote Nos. 1, 8, Findings of Fact Nos. 7, 33, 36-37, 39, and 42 at 1, 3, 10-13.
. . . .
39. Claimant, on October 23, 2003, stopped work due not only to neck and shoulder problems, but an inability to walk due to severe left leg pain. There is no competent medical evidence of record to unequivocally explain Claimant's paralyzing left leg complaints and the connection of these complaints to the work related injury of September 5, 2003, and for this reason, Claimant's inability to return to the work that Claimant was performing from September 25, 2003 up to October 22, 2003 is found by this Judge for reasons non-work related in nature.
. . . .
42. Claimant's counsel has argued in a letter dated November 25, 2005 to this court that the record reopen [sic] to receive a medical report dated October 31, 2005 of Dr. L.B. Kamen, a board certified physiatrist who examined Claimant at the request of Claimant's physician, Dr. Shridhara [sic]. This Judge declines to do so, finding that any examination occurring in October of 2005 is not competent to show what Claimant's condition was in March of 2004, that date upon which this Judge finds Claimant to be fully recovered from any and all effects of the work related injury of September 5, 2003.
IV. Board's First Order.
Claimant appealed to the Board which affirmed in part, modified in part, and remanded. Claimant argued that the WCJ erred when she determined that Claimant was not totally disabled from September 5, 2003, through September 25, 2003. The Board remanded:
After a careful review of the record, we believe that a remand is warranted. . . . Although the WCJ determined that Claimant was not totally disabled from September 5, 2003 until she returned to work on September 25, 2003, based on her finding that Claimant was released to light-duty work as of the date of her injury, because the Claimant sustained a work-injury that resulted in her being unable to perform her pre-injury job, it was Defendant's [Employer] burden to show that work with her restrictions was available to her. . . . Although Mr. Roman testified that light-duty work was available to Claimant as of the date of her injury, and that Defendant [Employer] offered a position to Claimant, the WCJ made no findings as to whether work within Claimant's restrictions was available or whether Defendant [Employer] offered Claimant one of those positions as required by Section 306(b)(2) of the Act, prior to September 25. . . . We therefore remand this matter in order for the WCJ to determine whether Defendant [Employer] offered Claimant a light-duty position during the period of September 5-25, 2003, and make all other necessary findings of fact and conclusions of law with respect to Claimant's disability during that period. (Footnote and citations omitted).Board Opinion, May 30, 2007, (Opinion) at 9.
Claimant also argued that the WCJ erred when she suspended her benefits because the WCJ was required to determine that work was available and that, at the very least, she was entitled to partial disability benefits. The Board agreed that Claimant was entitled to partial disability benefits and modified the WCJ's order:
Upon carefully reviewing the record, Claimant's benefits should not have been suspended as of October 23, 2003. Dr. Levin credibly opined that, although it called for some work restrictions, Claimant's work injury did not prevent her from working her light-duty job. Because the WCJ accepted Defendant's [Employer] evidence that Claimant left her job in which she was earning less than her pre-injury wage for reasons not related to her work injury, Defendant [Employer] was entitled to a modification to the extent of Claimant's earning power from that position. . . . Accordingly, Claimant's benefits should have been modified, not suspended, as of October 23, 2003, and we therefore modify the WCJ's Decision and Order to reflect that Claimant was entitled to receive the difference between her average weekly wage and weekly earnings from her light-duty job. (Citation omitted).Opinion at 10. The Board affirmed the WCJ's order in all other respects including that Employer's contest was reasonable and that the WCJ properly refused to impose any penalties.
V. Reinstatment Petition.
On or about October 12, 2007, Claimant petitioned for reinstatement and alleged that her condition arising from the September 5, 2003, work-related injury worsened as of July 15, 2005. Employer moved to dismiss the reinstatement petition based upon the doctrine of res judicata, claim preclusion, and collateral estoppel/issue preclusion.
Claimant also filed a claim petition and asserted that on July 15, 2005, she sustained an injury in the nature of a repetitive injury/aggravation of a preexisting condition. This petition is not before this Court.
VI. WCJ Hearings: Remand and Reinstatement.
A. Remand.
The WCJ did not take testimony but heard argument. With respect to the remand, the WCJ ordered Employer to pay Claimant workers' compensation benefits at the rate of $337.50 per week beginning September 6, 2003, up to September 24, 2003. The WCJ also ordered Employer to pay Claimant partial benefits at the rate of two-thirds of the difference between Claimant's actual earnings and her pre-injury average weekly wage during the period from September 24, 2003, through March 17, 2004. The WCJ made the following relevant findings of fact:
3. This Judge finds the testimony of Daniel R. Roman competent, credible and persuasive that Defendant [Employer] makes an effort to provide injured employees with modified work. However, this Judge is not persuaded in this case that modified work was offered to Claimant. The Judge accepts the evidence that Claimant received the medical releases, and may have been informed to report to her supervisor; however, the foregoing is not legally equivalent to a job offer.
Without proof of a job offer, i.e. the specifics of the alleged available work, and the specific restrictions upon which the work is based, this Judge is not able to determine the suitableness of the available work.
The record lacks sufficient evidence upon which this Judge can render an impartial judicial determination on the issue of whether the work that Defendant [Employer] alleges is available to claimant is suitable, given Claimant's acknowledged work related injury restrictions. The Judge does accept Mr. Roman's testimony that available modified work consists of sorting through screws and gears, or testing modules. However, without a descriptive detail as to the size or weight of the screws and gears, or the height of the table or line at which Claimant would be required to work, the
record is not clear if the available work is consistent with Dr. Randy Barnett's restrictions against overhead activities, bending or twisting or Dr. Alexrod's [sic] restrictions against lifting over five pounds. Based upon the evidentiary record, the Judge finds that no offer of work was made to Claimant.WCJ's Decision, July 11, 2008, (Decision, 7/11/08), Finding of Fact No. 3 at 2-3.
B. Reinstatement.
With respect to the reinstatement petition, the WCJ dismissed the petition and made the following relevant findings of fact:
4. In the previous litigation, the last hearing occurred on November 15, 2005. Further, the evidentiary record spanned the period from February 17, 2004 to November 15, 2005. Claimant is now asserting that her disability worsened on July 15, 2005. This Judge finds that the date upon which Claimant is now asserting that her disability worsened was considered and fully adjudicated in the previous decision and Order circulated on March 21, 2006. . . . (Emphasis added).Decision, 7/11/08, Findings of Fact Nos. 4-5 at 1-2.
5. The issue of Claimant's disability arising from the injury of September 5, 2003 as of July 15, 2005 (the Reinstatement Petition) was fully litigated in the previous Claim Petition proceedings. (Footnote omitted) (Emphasis added).
VII. Second Board Opinion.
Both parties appealed the WCJ's remand decision. Claimant also appealed the WCJ's decision on the reinstatement petition.
A. Employer's Appeal.
Employer contended before the Board that the WCJ erred when she awarded benefits from September 6, 2003, through September 24, 2003, and that it was entitled to a credit for wage supplement payments made to Claimant between September 5, 2003, through September 20, 2003. The Board affirmed.
B. Claimant's Appeal of Remand Decision.
Claimant argued that the Board's remand order included a requirement that the WCJ reevaluate the issue of the reasonableness of Employer's contest and the denial of the penalty petition should she be awarded total disability benefits on remand. The Board reviewed its earlier remand order and rejected Claimant's argument. Claimant also argued that the WCJ erred when she failed to award litigation costs incurred on remand. The Board modified the Order to include an award of $75.95 in litigation costs. The Board affirmed its original order and made it final so that Claimant could pursue an appeal with this Court.
C. Claimant's Appeal of Reinstatement Decision.
With respect to the reinstatement petition, Claimant argued that she unsuccessfully attempted to reopen the record for the submission of the October 31, 2005, medical report from Dr. Leonard B. Kamen, D.O. (Dr. Kamen), and because she was unsuccessful in her bid to have the record reopened, the record closed as of the date previously set by the WCJ, which was April 2005, and as a result Claimant's status as of July 15, 2005, was never litigated. The Board rejected Claimant's argument and affirmed.
VIII. Petition for Review with this Court.
Before this Court Claimant raises the following issues with respect to the claim petition:
After a motion by Claimant, this Court by order dated April 1, 2011, directed that the certified record be supplemented with Claimant's letter from November 21, 2005, addressed to the WCJ which included the attached two page report of Dr. Kamen dated October 31, 2005, and the WCJ's April 26, 2005, letter closing the record and establishing a briefing schedule. Claimant's brief does not include page two of the November 21, 2005, letter.
1. The Board and the WCJ erred when they refused to open the record.
2. The Board and WCJ erred when they failed to clearly and correctly identify the work injuries and the extent of disability caused by the work injuries.
3. The Board misinterpreted Finding of Fact Number 39 of the WCJ's decision with respect to the extent of the work injuries/disability which resulted in the failure to award Claimant full disability benefits from October 23, 2003, to March 17, 2004.
4. The WCJ violated due process review principles set forth in Section 422(a) of the Act, 77 P.S. §834.
5. The Board erred when it failed to recognize that the WCJ's decision was contrary to the record in regard to credibility findings and/or was an abuse of discretion because the WCJ ignored all objective evidence favorable to Claimant.
6. Claimant was deprived of her right to testify live on rebuttal.
7. The WCJ and the Board erred when they failed to discuss the legal effect of Employer's payment of medical bills to the March 21, 2006 WCJ, decision.
8. The language in the March 21, 2006, WCJ's decision meant that the legal effect of the order was a suspension and not a termination.
9. The Board and WCJ erred when they did not allow Claimant to cross-examine Employer's witnesses to determine their financial ties to Employer.
10. An injured employee, who returns to work while still suffering residual work injuries, has a right to an independent medical observer when the employer insists on its clinic conducting an examination of the worker and if an independent medical observer is not permitted, then all testimony relating to the examination must be struck.
11. The Board and WCJ erred when they failed to award a penalty for Employer's failure to fully investigate the claim and by the delay of the payment of benefits for an injury and disability admitted by its own clinic.
12. The Board and WCJ erred when they failed to "make/order/allow" a penalty evaluation when Employer's own witness conceded there were jobs available consistent with Claimant's medical restrictions but were never offered to Claimant as required under the Act.
13. The Board's May 30, 2007, Order required the WCJ on remand to reevaluate the disability and penalty issues after the facts and law were modified by the Board's remand order and the WCJ's July 11, 2008, order.
14. The Board and WCJ erred by not awarding legal fees for unreasonable contest where it was clear that Employer knew from the time of the work accident, that Claimant was injured, required restricted work and was losing wages by reason of the work injuries but Employer
refused to file a notice of compensation payable and refused to pay lost wage benefits.
15. Employer filed an answer to the claim petition that denied a work injury, denied a need for medical benefits, and denied any disability, all of which were known to be true by Dr. Axelrod, and required an assessment of legal fees for unreasonable contest.
16. The language in the Board's May 30, 2007 order required/authorized the reevaluation of the unreasonable contest issue on remand.
17. Where the WCJ's Finding of Fact No. 39 in her March 21, 2006, decision recognized that Claimant stopped work for three reasons, at least two of which were related to the work injury, that the Board and the WCJ erred when they failed to award total disability or maximum partial disability benefits from October 23, 2003.
18. The WCJ capriciously disregarded competent evidence when the WCJ did not find that Claimant's work injury included back/left leg injuries.
Claimant did not raise this issue in the argument section of her brief. Consequently, this issue was waived. See Pa.R.A.P. 2119; Van Duser v. Unemployment Compensation Board of Review, 642 A.2d 544 (Pa. Cmwlth. 1994). (Issues not briefed are waived).
With respect to the reinstatement petition, Claimant raises the following issues:
1. The Board erred when it confirmed the WCJ's dismissal of Claimant's reinstatement petition without reviewing new evidence.
2. The Board erred when it refused to reverse the dismissal of the reinstatement petition when the record and the prior decision contained no mention of work events which occurred in June and July 2005.
3. Claimant was deprived of her due process right to a fair hearing when the Board determined that Claimant could not prove a reinstatement claim based on precise and credible evidence when the offered evidence was
denied admission by the WCJ and the Board admitted that it did not read the evidence.
4. The Board could have read the motion to open the record and the accompanying evidence under the doctrine of judicial notice.
5. The Board and the WCJ erred when they determined that Pennsylvania law precluded the WCJ from hearing and evaluating new, previously unavailable evidence once the WCJ had decided to credit Employer's doctor.
6. The WCJ erred when she concluded that new medical evidence in 2005, had no relevance to an explanation of Claimant's September 5, 2003, work injury and her ongoing complaints.
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).
IX. Motion to Open Record.
Initially, Claimant contends that the Board and the WCJ disregarded the Act and case law by denying Claimant's motion to open the record. Specifically, Claimant argues that the WCJ erred when she did not grant her motion to open the record to admit the medical report dated October 31, 2005, of Dr. Kamen. The WCJ declined to grant the motion based upon her determination that an examination conducted in October of 2005, was not competent to show what Claimant's condition was in March 2004, when the WCJ found Claimant to be fully recovered.
The Board determined that the WCJ did not abuse her discretion when she did not reopen the record to allow Claimant to introduce Dr. Kamen's report because the record had closed within thirty days of the March 22, 2005, hearing. A review of the record reveals that the WCJ at the March 22, 2005, hearing clearly indicated that the record would close within thirty days. Claimant argued in a letter to the WCJ dated November 25, 2005, that the record be reopened to allow the inclusion of the report from Dr. Kamen.
In Hammerle v. Workmen's Compensation Appeal Board (Department of Agriculture, Bureau of Dog Law Enforcement), 490 A.2d 494 (Pa. Cmwlth. 1985), Thomas Hammerle (Hammerle) had sought workers' compensation disability benefits after he allegedly suffered mental and nervous disabilities which resulted from work-related stress. After the record closed before the referee, Hammerle sought to present additional expert medical testimony. The referee had informed the parties by letter dated February 25, 1981, that Hammerle's employer had requested that the record be closed without the presentation of additional evidence. The referee did not receive any response to the letter and closed the record by May 11, 1981. By letter dated May 14, 1981, Hammerle requested that the case be reopened to allow him to present additional medical testimony. The referee refused. Hammerle, 490 A.2d at 497. The referee denied the claim petition. The Board affirmed. Hammerle petitioned for review with this Court which also affirmed. With respect to the issue of Hammerle's request to reopen the record, this Court determined, "In view of that time permitted for response, we do not believe that the referee abused his discretion in refusing to reopen the case for the presentation of additional medical testimony as requested by claimant's letter dated May 14, 1981." Hammerle, 490 A.2d 497.
At the time, WCJs were known as referees.
Here, Claimant attempted to introduce the report of Dr. Kamen months after the close of the record. While Claimant states that there was an additional hearing on November 15, 2005, Claimant's request for submission of that report was made in writing later. Claimant argues that her counsel made the request orally at the November 15, 2005, hearing. Unfortunately, the record does not contain the transcript of that hearing. Even so, under Hammerle, it is within the WCJ's discretion to open the record. There was no abuse of discretion.
X. Capricious Disregard of Evidence.
Claimant next contends that the WCJ capriciously disregarded or committed an abuse of discretion with respect to all testimony, documentary evidence and cross-examination by Claimant related to the correct identification of Claimant's work injuries, the unlawful suspension of Claimant's benefits from September 6, 2003, to September 25, 2003, and October 23, 2003, to March 17, 2004, and the failure to award penalties and fees against Employer for an unreasonable contest.
This Court has foregone the sequence of Claimant's arguments.
A. Work Injury.
Claimant acknowledges that the WCJ found Dr. Levin credible and accepted his opinion that Claimant suffered a cervical strain. However, Claimant attempts to "clarify" the nature of the injury through subsequent testimony of Dr. Levin in the claim petition that is not before this Court. This Court may not address evidence that is not part of the record. Consequently, this Court will not address Claimant's contention.
B. Full Benefits from October 23 , 2003, through March 17, 2004.
Claimant next contends that she was entitled to total disability benefits from October 23, 2003, through March 17, 2004. Initially, the WCJ suspended benefits for this period because one reason, among many, that Claimant could not work was severe leg pain which the WCJ found to be unrelated to the work injury. The Board agreed with Claimant that she was entitled to partial disability benefits.
On remand the WCJ awarded Claimant partial disability compensation benefits equal to two-thirds of the difference between Claimant's actual earnings and her pre injury average weekly wage during the period from October 23, 2003, through March 17, 2004.
Claimant argues that because she was forced to stop work on October 23, 2003, due to problems associated with her work-related injury she should receive total disability benefits for this period. Claimant ignores the fact that the WCJ found credible Dr. Levin's testimony that Claimant, while not totally disabled, "had legitimate work injury residuals requiring treatment and some reasonable work instruction so as not to aggravate the sprain and strain." Levin Deposition at 157. There was credible testimony that Claimant could perform her light duty job based on the recognized work-related disability. The WCJ as the ultimate finder of fact in workers' compensation cases has exclusive province over questions of credibility and evidentiary weight, and is free to accept or reject the testimony of any witness, including a medical witness, in whole or in part. General Electric Co. v. Workmen's Compensation Appeal Board (Valsamaki), 593 A.2d 921 (Pa. Cmwlth.), petition for allowance of appeal denied, 529 Pa. 626, 600 A.2d 541 (1991). This Court will not disturb a WCJ's finding when those findings are supported by substantial evidence. Nevin Trucking v. Workmen's Compensation Appeal Board (Murdock), 667 A.2d 262 (Pa. Cmwlth. 1995). The Board did not err when it determined that Claimant was entitled to partial, not total, disability benefits.
C. Penalties.
Claimant next contends that the Board erred when it affirmed the WCJ's determination that Claimant was not entitled to penalties under Section 406.1 and Section 435 of the Act. Claimant asserts that a penalty should be assessed against Employer because, despite the information available to it at the time, Employer filed a notice of compensation denial. Further, after the claim petition was filed, Employer answered and denied all allegations.
Section 406.1(a) of the Act, 77 P.S. §717.1(a), provides in pertinent part:
The employer and insurer shall promptly investigate each injury reported or known to the employer and shall proceed promptly to commence the payment of compensation due either pursuant to an agreement upon the compensation payable or a notice of compensation payable as provided in Section 407 or pursuant to a temporary notice of compensation payable as set forth in subsection (d), on forms prescribed by the department and furnished by the insurer. The first installment of compensation shall be paid not later than the twenty-first day after the employer has notice or knowledge of the employe's disability.
Section 435 of the Act, 77 P.S. §991, provides in pertinent part: (d) The department, the board, or any court which may hear any proceedings brought under this act shall have the power to impose penalties as provided herein for violations of the provisions of this act or such rules and regulations or rules of procedure.
(i) Employers and insurers may be penalized a sum not exceeding ten per centum of the amount awarded and interest accrued and payable: Provided, however, That such penalty may be increased to fifty per centum in cases of unreasonable or excessive delays. Such penalty shall be payable to the same persons to whom the compensation is payable.
Jeschke testified that a Notice of Compensation Denial was issued because he had medical documentation which indicated that Claimant could work a light duty job with restrictions. The WCJ determined that Employer legitimately filed a notice of compensation denial because Employer possessed medical evidence which discounted any relationship between Claimant's high blood pressure and the work incident and also had documentation that released Claimant to work. The Board affirmed.
The assessment of penalties, as well as the amount of penalties imposed, is discretionary, and absent an abuse of discretion by the WCJ, this Court will not overturn the WCJ's decision on appeal. Westinghouse Electric Corporation v. Workers' Compensation Appeal Board (Weaver), 823 A.2d 209 (Pa. Cmwlth. 2003). "An abuse of discretion is not merely an error of judgment but occurs, inter alia, when the law is misapplied in reaching a conclusion." Id. at 213-214. A judge's ruling on a penalty petition is to be reversed only if the judge has abused his discretion and misapplied the law. Westinghouse.
In the notice of compensation denial, Employer stated that benefits were denied because "[a]lthough an injury took place, the employee is not disabled as a result of this injury within the meaning of the Workers' Compensation Act." Notice of Workers' Compensation Denial, September 26, 2003, at 1.
A review of the record reveals that Employer had a record from Jeanes Hospital dated September 10, 2003, which indicated that Claimant had high blood pressure which was not work-related. Employer could legitimately have issued the denial based on this information that Claimant's high blood pressure kept her from working which was corroborated by Dr. Axelrod. This Court has held that an employer may properly file a notice of compensation denial even when it acknowledges that a work-related injury has occurred, if there is a dispute regarding the claimant's disability. Armstrong v. Workers' Compensation Appeal Board, 931 A.2d 827 (Pa. Cmwlth. 2007). This Court finds no error.
Claimant argues that the Board should have directed the WCJ to issue modified findings concerning the penalty issue on remand. The Board determined that the remand order prevented such an action. Because this Court finds no error in the original decision, this Court need not address this issue. Claimant also argues that Employer violated the Act because it failed to offer Claimant a job within her work restrictions. Claimant did not raise this issue before so it is waived. In Budd Baer, Inc. v. Workers' Compensation Appeal Board (Butcher), 892 A.2d 64, 67 (Pa. Cmwlth.), petition for allowance of appeal denied, 588 Pa. 784, 906 A.2d 544 (2006), this Court stated, "Issues not raised before the WCJ and the Board are deemed waived on appeal to this Court." Although Claimant seeks the assessment of attorney fees, she does not address whether Employer's contest was reasonable.
XI. Termination.
Claimant next contends that the WCJ's March 21, 2006, decision constituted a capricious disregard/abuse of discretion with respect to all testimony, documentary evidence, and cross-examination relating to the termination of benefits on March 18, 2004. Claimant first attacks the WCJ's determination in footnote No. 1 of the March 21, 2006, decision in which the WCJ explained that she did not permit Claimant to testify a second time before the WCJ but authorized her deposition. The WCJ explained that she found Claimant's behavior "not entirely consistent, and at times at variance, with her testimony." WCJ's Decision, March 21, 2006, Footnote No. 1 at 1. It is unclear exactly what point Claimant is attempting to make unless it is to attack the WCJ's credibility which is impermissible. Once again, the WCJ is the factfinder.
Claimant also asserts that because the WCJ ordered that Employer pay all medical expenses associated with the work injury up until the date of the order of March 21, 2006, that Claimant's benefits could not be terminated on March 18, 2004. Claimant cites no section of the Act, regulation, or case law to support this assertion.
Claimant also asserts that the WCJ erred when she declined to permit Claimant to testify live on rebuttal and instead directed the testimony be recorded via a deposition. Claimant was scheduled to testify before the WCJ on December 16, 2004. Unfortunately, the person who was supposed to translate for her was involved in an automobile accident and did not appear. The WCJ did not reschedule the hearing but requested that Claimant's counsel proceed to take Claimant's testimony by deposition.
Claimant is not fluent in English and required a translator before the WCJ and before the doctors deposed in the case.
The Board affirmed the WCJ's action:
Upon review, we cannot agree that the WCJ erred. The WCJ had the opportunity to evaluate Claimant's appearance and demeanor during her live testimony on April 22, 2004, and the interpreter's absence and time constraints gave the WCJ reason not to opt for additional live rebuttal testimony. . . . Further, Claimant presented additional testimony by deposition, thus she was not denied the opportunity to complete her case. We therefore reject Claimant's contention. To the extent Claimant asserts that her due process rights were denied by the fact that she was required to submit her rebuttal testimony via deposition rather than live, due process principals apply to administrative proceedings and require that a party have an opportunity to hear evidence by the opposing party, cross-examine witnesses and introduce evidence on one's own behalf. . . . Claimant was afforded an opportunity to present her case by her own live testimony at the April 22, 2004 hearing. It was only her further rebuttal testimony that she was directed to submit by deposition. Claimant has been afforded due process of law. No error was committed in this respect. (Citations Omitted).Opinion at 13.
The WCJ must allow a party to have the opportunity to present its case. City of Philadelphia v. Workers' Compensation Appeal Board (Rooney), 730 A.2d 1051 (Pa. Cmwlth. 1999). Claimant had that opportunity. There is a preference for live testimony where possible, so that the WCJ may observe the demeanor of the witness. See Otis Elevator Company v. Workmen's Compensation Appeal Board (Harding), 651 A.2d 667 (Pa. Cmwlth. 1994). Here, the Board is correct that Claimant had the opportunity to present her case, and that the WCJ had the opportunity to observe the demeanor of Claimant when she previously testified at length. This Court agrees with the Board that the WCJ did not err.
XII. Credibility.
Claimant next contends that the WCJ's credibility determinations with respect to the medical witnesses failed to satisfy the requirements of Section 422(a) of the Act, 77 P.S. §834, such that the decision was not reasoned.
Section 422(a) of the Act, 77 P.S. §834, provides:
Neither the board nor any of its members nor any workers' compensation judge shall be bound by the common law or statutory rules of evidence in conducting any hearing or investigation, but all findings of fact shall be based upon sufficient competent evidence to justify same. All parties to an adjudicatory proceeding are entitled to a reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole which clearly and concisely states and explains the rationale for the decisions so that all can determine why and how a particular result was reached. The workers' compensation judge shall specify the evidence upon which the workers' compensation judge relies and state the reasons for accepting it in conformity with this section. When faced with conflicting evidence, the workers' compensation judge must adequately explain the reasons for rejecting or discrediting competent evidence. Uncontroverted evidence may not be rejected for no reason or for an irrational reason; the workers' compensation judge must identify that evidence and explain adequately the reasons for its rejection. The adjudication shall provide the basis for meaningful appellate review.
In Daniels v. Workers' Compensation Appeal Board (Tristate Transport), 574 Pa. 61, 78, 828 A.2d 1043, 1053 (2003), our Pennsylvania Supreme Court stated that "absent the circumstance where a credibility assessment may be said to have been tied to the inherently subjective circumstances of witness demeanor, some articulation of the actual objective basis for the credibility determination must be offered for the decision to be a 'reasoned' one which facilitates effective appellate review." (Footnote omitted and emphasis added). Our Pennsylvania Supreme Court further explained in Daniels that "where the factfinder has had the advantage of seeing the witness testify and assessing their demeanor, a mere conclusion as to which witness was deemed credible, in the absence of some special circumstance, could be sufficient to render the decision adequately reasoned." Id. at 77, 828 A.2d at 1053.
With respect to Dr. Levin, Claimant acknowledges that the WCJ explained why she credited Dr. Levin: 1) Dr. Levin had a thorough review and knowledge of Claimant's medical records; 2) he had an impressive medical background; and, 3) his medical reasoning was sound. These reasons certainly satisfy the requirements of Section 422(a) of the Act and Daniels. In effect, Claimant couches her attack on the WCJ's explanations for finding Dr. Levin credible. Claimant really is attacking the credibility determination itself. She argues that because Dr. Gupta spent more time with Claimant than did Dr. Levin that Dr. Gupta should have been found credible over Dr. Levin. Claimant also argues that Dr. Gupta's findings and opinions were more in line with Dr. Sridhara, Dr. Cifelli, and Dr. Guttman, who all treated Claimant at some point. Therefore, Dr. Gupta should have been found more credible than Dr. Levin. Also, because Dr. Levin saw one to two of Employer's employees per week and testified for Employer on a regular basis, Claimant argues that Dr. Levin was biased in favor of Employer. While these are all factors the WCJ could consider in determining credibility, there is no requirement that the WCJ's resolution of these factors must be set forth in the decision. Essentially, Claimant is asking this Court to reweigh the WCJ's credibility determinations. This Court is not permitted to do so.
Claimant also asserts that the testimony of Cohen, the nurse who observed Dr. Levin examine Claimant on March 18, 2004, contradicted Dr. Levin's testimony with respect to whether Claimant was tearful during the examination and with respect to what tests Dr. Levin administered to Claimant as well as other contradictions. A review of the decision reveals that the WCJ discounted Cohen's opinion because she testified that Dr. Levin conducted thorough examinations and spent about an hour with each patient. Again, the WCJ chose to credit Dr. Levin and explained why. The WCJ is required to do no more.
Claimant also complains that at the October 5, 2004, hearing the WCJ forced Cohen to wait for an hour while Sauer testified which forced Claimant to pay Cohen for an extra hour of her time. Claimant did not object when the WCJ allowed Sauer to testify first. Therefore, Claimant did not preserve this issue for this Court's review. At any rate, displeasure with the WCJ's management of the hearing is completely irrelevant to the issues before this Court.
Claimant next contends that the WCJ ignored certain determinations of Dr. Axelrod. Claimant argues that the WCJ did so because of her "silent recognition that there was much in the testimony of Dr. Axelrod that conflicted with the WCJ's favorable view of Employer." Claimant's Brief at 69. It is unclear whether this is an attempt to argue that the WCJ was improperly biased in favor of Employer. The WCJ summarized Dr. Axelrod's testimony in her decision and found it not credible where it conflicted with Dr. Levin's. Claimant points out portions of Dr. Axelrod's testimony which she believes conflicted with the WCJ's summary of Dr. Axelrod's testimony. Claimant argues that the WCJ erred when she ignored this testimony and did not award Claimant benefits between September 6, 2003, and September 24, 2003. However, on remand, the WCJ did award Claimant total disability compensation benefits during that period, so Claimant's argument is of no moment.
Claimant also contends that the WCJ erred when she overruled her objection that a physical examination by Dr. Axelrod of Claimant in July 2004, could not be used for litigation purposes but only to determine whether Claimant was able to return to work. Claimant argues that Employer had no right to require the exam so that Dr. Axelrod could have a timelier examination to use during his August 2004, deposition. Given that the WCJ found that Claimant was fully recovered as of March 18, 2004, any testimony by Dr. Axelrod concerning dates after that would not affect Claimant. This argument is not relevant.
Claimant next contends that the WCJ erred when she failed to credit the testimony of Dr. Gupta who was Claimant's treating physician. A review of the record reveals that Dr. Gupta was asked on cross-examination, "Isn't it true that at no time within those reports did you ever disable her from working at Cardone; that is, put her out of work?" He replied: "As far as I remember. I mean, it is possible that if - we may have given her a note that while we avoid going back to work for a week or so if the pain was significant. Usually, we do not give that kind of a note." Dr. Gupta Deposition at 149. This statement supports the WCJ's finding. While Dr. Gupta may have said at other places in the deposition that he did place restrictions on Claimant, he admitted that he did not do so on cross-examination. The WCJ accepted this testimony. There was no error.
Claimant also challenges the WCJ's assessment of lay witnesses. She argues that the WCJ made erroneous findings with respect to Jeschke's testimony and seeks a remand. Claimant makes this argument with respect to the penalty issue. This Court has already determined that the WCJ did not abuse her discretion when she declined to award penalties.
Claimant persists in attacking the WCJ's determination that Cochea was more credible than Claimant. First, Claimant asserts that the WCJ failed to order the production of information concerning the diameter of the rotating rod and the number of rotations per second in order to determine how much hair was entangled in the machine and that this information would contradict Cochea's testimony. In the hearing on December 16, 2004, Claimant's counsel requested that Employer produce this information. Employer's counsel argued that it was not relevant. The WCJ ruled, "I kind of think the same thing. I don't see the relevance." N.T. 12/16/04 at 77. Claimant's counsel asserted, "And this will determine that credibility question objectively." The WCJ responded, "No need for it." N.T. 12/15/04 at 78. This Court finds that the WCJ did not abuse her discretion when she refused to force Employer to provide this information. Claimant also argues that because Cochea stated that the color of the shirt Claimant was wearing at the time of the accident was different than the shirt Claimant produced Cochea was not credible. The WCJ found the importance of the color of the shirt to be de minimis. Also, Claimant asserts that Cochea testified that she was not questioned by Employer concerning the accident when Roman testified that he did so as part of his investigation. This is an apparent attack on the credibility determination of the WCJ. Once again, credibility determinations are within the purview of the WCJ.
Finally, Claimant questions the WCJ's findings with respect to Sauer. Claimant argues that the WCJ erroneously inferred that Claimant did not appear for work on July 6, 2004. However, Finding of Fact No. 25 states, "Mr. Sauer testified that Claimant showed up for work with Mr. Jacob on July 6, 2004." Decision, Finding of Fact No. 25 at 9. Claimant also asserts that the job offered to Claimant in October 2003, was her original job with no restrictions. However, Sauer testified that an injured worker remains in the same job classification until the worker returns or is unable to come back. Sauer Deposition at 33-34. Sauer did not say that Claimant was offered her time of injury job. Claimant makes other attacks on the WCJ's determination that Sauer was familiar with the job offered to Claimant. While Claimant may find support in the record contrary to the WCJ's finding, she ignores substantial evidence in the record which supported the finding. At other times, Claimant misreads the record. She states that the WCJ in Finding of Fact No. 28 misunderstood the testimony when she found that Jacob informed Sauer that Claimant could not work on July 6, 2004, because she was in too much pain and had a note from her doctor. Claimant also argues Jacob informed Sauer that it was too difficult for Claimant to start work early in the morning because it would make her condition worse. A review of the hearing transcript shows that Sauer's testimony on pages 28 and 29 of the October 5, 2004, hearing supports the WCJ's findings. Claimant's insistence that the WCJ credit Claimant's version of events lacks support in the law.
XIII. Reinstatement.
Claimant next contends that once it is clear that the WCJ closed the record by May 4 or April 22, 2005, and wrongly decided Claimant's timely filed motion to open for the submission of new, previously unavailable evidence, there was no lawful basis to deny Claimant the right to file for reinstatement. While this Court has determined that the record was closed on April 22, 2005, or at the latest, May 4, 2005, and that the WCJ did not err when she declined to reopen the record, that does not end this Court's inquiry as to whether the Board erred when it affirmed the WCJ's dismissal of the reinstatement petition on the basis of res judicata.
Claimant contends that she did not waive her right to litigate the reinstatement petition. In order to reinstate benefits after a termination of benefits, a claimant must establish a causal connection between the work-related injury and the claimant's current condition. Further, the claimant must prove that the disability has increased or recurred since the termination and that his physical condition has changed. Pieper v. Ametek-Thermox Instruments Division, 526 Pa. 25, 584 A.2d 301 (1990). The WCJ granted Employer's motion to dismiss the reinstatement petition on the basis of res judicata.
In Weney v. Workers' Compensation Appeal Board (Mac Sprinkler Systems, Inc.), 960 A.2d 949 (Pa. Cmwlth. 2008), appeal denied, 601 Pa. 691, 971 A.2d 494 (2009), this Court recounted the criteria necessary to establish res judicata and collateral estoppel:
Initially, we note that technical res judicata and collateral estoppel are both encompassed within the parent doctrine of res judicata, which 'prevents the relitigation of claims and issues in subsequent proceedings.' Henion [v. Workers' Compensation Appeal Board (Firpo & Sons, Inc.)], 776 A.2d at 365 [(Pa. Cmwlth. 2001)].
Under the doctrine of technical res judicata, often referred to as claim preclusion, 'when a final judgment on the merits exists, a future suit between the parties on the same cause of action is precluded.' Id. In order for technical res judicata to apply, there must be: '(1) identity of the thing sued upon or for; (2) identity of the cause of action; (3) identity of the persons and parties to the action; and (4) identity of the quality or capacity of the parties suing or sued.' Id. at 366. Technical res judicata may be applied to bar 'claims that were actually litigated as well as those matters that should have been litigated.' Id. . . . . 'Generally, causes of action are identical when the subject matter and the ultimate issues are the same in both the old and the new proceedings.' Id.
The doctrine of collateral estoppel often referred to as issue preclusion, 'is designed to prevent relitigation of an issue in a later action, despite the fact that the later action is based on a cause of action different from the one previously litigated.' Pucci v. Workers' Compensation Appeal Board (Woodville State Hosp.), 707 A.2d 646, 647-48 (Pa. Cmwlth. 1998). Collateral estoppel applies where:
(1) the issue decided in the prior case is identical to the one presented in the later case; (2) there was a final judgment on the merits; (3) the party against whom the doctrine is asserted was a party or in privity with the party in the prior case and had a full and fair opportunity
to litigate the issue; and (4) the determination in the prior proceeding was essential to the judgment.Weney, 960 A.2d at 954 (emphasis in original and added).
Id. at 648.
The Board affirmed the WCJ's grant of the motion to dismiss:
Upon review, the WCJ did not err in concluding that Claimant's Reinstatement Petition alleging a worsening of her condition as of July 15, 2005 was barred by the doctrine of res judicata. Pursuant to Hammerle, it was not necessary for the issue of Claimant's condition as of those dates to be actually litigated; rather, Claimant by her actions could essentially waive her right to present new medical evidence. . . . We therefore reject Claimant's argument.
. . . Because we see no indication that Claimant argues that the proffered medical report would have met the required burden to establish by precise and credible evidence that her condition changed in some manner since the date the WCJ terminated her benefits, we must reject Claimant's argument that a remand is required in order for the WCJ to formally admit this evidence into the record. . . . Rather, we conclude that because the WCJ concluded in the First decision, based on the evidence presented, that Claimant was fully recovered from her work injury as of March 2004 and on that basis declined to accept any evidence of ongoing work-related disability as of October 31, 2005, the issue that Claimant now seeks to litigate of Claimant's disability as of the approximate time frame of July to October 2005 was addressed in the First decision, and she is therefore barred from raising it again herein.
Second, it is clear from the WCJ's statements in Finding of Fact 42 of the First Decision that, based on Claimant's counsel's November 25, 2005 letter, the WCJ understood that the import of the proffered evidence was to establish that Claimant's disability was ongoing as of October 31, 2005, and that the WCJ rejected the admissibility of the
proffered evidence based on that understanding; she had also rejected Claimant's other medical evidence seeking to establish ongoing disability after March 2004. Because we believe it is clear from the WCJ's First decision that she understood the import of the proffered medical evidence and rejected its admission, we do not believe a remand to formally receive the evidence into the record would be fruitful.Board Opinion, October 28, 2010, at 11-13.
Third, we further note that the WCJ in issuing the Third Decision stated in footnote 2 that she was aware 'that following the closing of the evidentiary record in the previous decision, Claimant's counsel requested the Judge to reopen the record for the medical report of Dr. Kamen.' In spite of this acknowledgement that the record was not officially reopened to officially receive evidence concerning Claimant's disability status as of the date at issue, the WCJ in the Third Decision nevertheless arrived at the factual conclusion that the issue of Claimant's disability was fully litigated as of July 15, 2006. Given the WCJ's stated conclusion in the Third Decision with respect to the litigation concerning Claimant's disability status as of that time period, we see no indication that the WCJ's findings of fact concerning Claimant's disability status as of July 15, 2006 [sic] would change were this matter to be remanded and the evidence formally admitted.
Claimant argues that in the reinstatement petition Claimant asserted that Claimant's disability recurred as of July 15, 2005, due to a worsening of her condition.
In National Fiberstock Corporation v. Workers' Compensation Appeal Board (Grahl), 955 A.2d 1057 (Pa. Cmwlth. 2008), National Fiberstock Corporation (National) petitioned to terminate the benefits of Debra Grahl (Grahl) as of October 20, 1997. On March 27, 2002, the WCJ found that Grahl had fully recovered from her work-related injury on October 20, 1997, and granted the termination petition. Grahl appealed to the Board which affirmed. On February 2, 2005, Grahl filed a reinstatement petition and alleged that as of January 3, 2005, she suffered a recurrence of her work-related disability in the nature of a worsening of her condition. National denied the allegations. National Fiberstock, 955 A.2d at 1059.
The WCJ granted the reinstatement petition, and the Board affirmed. National raised the issue of res judicata and asserted that Grahl testified that she had continued to have the same symptoms since she stopped working for National in 1994. Because Grahl was found to be fully recovered on October 20, 1997, National contended that Grahl was attempting to relitigate the termination petition. National Fiberstock, 955 A.2d at 1061.
This Court determined that the reinstatement petition was not barred by res judicata:
The ultimate and controlling issue decided in Employer's [National] termination petition was whether Claimant [Grahl] was fully recovered from her work-related injury, and she was found to be fully recovered as of October 20, 1997. The ultimate controlling issue in Claimant's [Grahl] reinstatement petition, the matter before us, is whether her work injury recurred as of January 3, 2005. These issues are not identical because they involve factual questions about Claimant's [Grahl] condition at two unrelated time periods. In short, Claimant's [Grahl] reinstatement petition is not barred by res judicata or collateral estoppel.National Fiberstock, 955 A.2d at 1061-1062.
Here, Claimant's benefits were terminated as of March 18, 2004. She sought reinstatement of benefits due to a recurrence of her work-related disability as of July 15, 2005. As in National Fiberstock, the termination and the reinstatement involve factual questions concerning Claimant's condition at two different periods in time. Of course, if Claimant did attempt to relitigate decisions already made, res judicata may certainly be invoked.
The Board also affirmed the dismissal of the reinstatement petition because it saw no indication that Claimant argued that the proffered medical report would have satisfied the required burden to establish by precise and credible evidence that her condition changed in some manner since the date the WCJ terminated her benefits. However, Claimant did not have the opportunity to present medical evidence. The Board also stated that it did not believe a remand to receive the evidence would be "fruitful" because the WCJ had already denied Claimant's request to open the record to include Dr. Kamen's report. However, the WCJ denied the request to open because she did not believe that the report would have any relevance to whether Claimant fully recovered from her work-related injury in March 2004. Similarly, the Board determined that the issue of Claimant's disability was fully litigated in the first decision. A review of the record reveals that the first decision did not address Claimant's disability status after March 18, 2004.
The Board's order with respect to the reinstatement petition is vacated and the reinstatement petition remanded to the Board with instructions to remand to the WCJ for consideration of its merits.
Accordingly, this Court affirms in part and vacates in part. This Court affirms the order of the Board with respect to the claim petition and penalties. This Court vacates the Board's order with respect to the reinstatement petition. This case is remanded to the Board with instructions to remand to the WCJ to adjudicate the reinstatement petition on the merits.
On March 22, 2011, this Court granted in part Claimant's "motion under appellate rule 1926 for clarification and/or expansion of record and allowed the certified record to be supplemented with Claimant's November 21, 2005, letter to the WCJ including attachments and the WCJ's April 26, 2010, (the order was later amended to April 26, 2005) letter closing the record. Claimant moved to correct the March 22, 2011, order with respect to the date of the WCJ's letter. On April 1, 2011, this Court granted the motion and ordered that the record be supplemented with Claimant's November 21, 2005, letter to the WCJ and the two page report of Dr. Kamen, dated October 31, 2005 as well as the WCJ's April 26 2005, letter. The order did not include a September 7, 2005, report of Dr. Kamen which was an attachment to the November 21, 2005, letter. On April 7, 2011, Claimant moved to review the April 1, 2011, order to add the September 7, 2005, report to the record. This Court grants that motion. --------
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 30th day of November, 2011, the order of the Workers' Compensation Appeal Board in the above-captioned matter is affirmed in part and vacated and remanded in part. This Court affirms the order of the Workers' Compensation Appeal Board with respect to the claim petition and penalties. This Court vacates the Worker's Compensation Appeal Board's order with respect to the reinstatement petition. This case is remanded to the Workers' Compensation Appeal Board with instructions to remand to the Workers' Compensation Judge to hear the reinstatement petition on the merits. Claimant's motion to review this Court's April 1, 2011, order is granted. Jurisdiction relinquished.
/s/_________
BERNARD L. McGINLEY, Judge