Opinion
No. 203 C.D. 2011
10-13-2011
Earl Kopsie, Petitioner v. Department of Public Welfare, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Earl Kopsie (Kopsie) petitions for review of an order of the Acting Secretary of the Department of Public Welfare (DPW), upholding an order of DPW's Bureau of Hearings and Appeals (Bureau). The Bureau, through its Chief Administrative Law Judge, adopted a recommended decision of Administrative Law Judge Richard E. Guida (ALJ). The ALJ concluded that DPW did not err in terminating Kopsie's benefits under the law commonly known as Act 534.
Section 1 of the Act of December 8, 1959, P.L. 1718, commonly known as Act 534, as amended, 61 P.S. § 951.
Act 534 provides for benefits to employees of state mental hospitals for injuries sustained during the course of employment by the act of any person committed to such a facility. In contrast to compensation employees may receive under the Workers' Compensation Act, a person who is deemed eligible for benefits under Act 534 is entitled to "full salary, until the disability arising therefrom no longer prevents his return as an employee of such . . . institution at a salary equal to that earned by him at the time of his injury." Act 534 anticipates that such employees may seek benefits under both Act 534 and the Workers' Compensation Act, but provides for the Commonwealth's recoupment of Worker's Compensation Act benefits as follows:
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708. The Workers' Compensation Act employs various formulae to determine the amount of workers' compensation benefits to which an injured employee may be entitled. Section 306(1) of the Workers' Compensation Act, 77 P.S. § 511, for example, provides the primary authority for the amount of compensation for employees who are deemed to be totally disabled and entitles such employees to sixty-six an two-thirds per centum of their wages, as defined in Section 309 of the Workers' Compensation Act, 77 P.S. § 582.
"The purpose of Act 534 . . . is to assure those undertaking dangerous employment in certain institutions that they will continue to receive full income when they are injured while performing their duties; by offering such assurance, the Commonwealth can attract employees to and keep them in the essential and dangerous jobs." McWreath v. Dep't of Pub. Welfare, 26 A.3d 1251, ___ (Pa. Cmwlth. 2011).
During the time salary for such disability shall be paid by the Commonwealth of Pennsylvania any workmen's compensation received or collected for such period shall be turned over to the Commonwealth and paid into the General Fund, and if such payment shall not be so made, the amount so due the Commonwealth shall be deducted from any salary then or thereafter becoming due and owing.Thus, as this Court has observed, Act 534 benefits essentially supplement, rather than replace, the benefits to which an injured employee may be entitled under the Workers' Compensation Act. Mirarchi v. Dep't of Corr., 811 A.2d 1096 (Pa. Cmwlth. 2002).
The parties do not dispute many of the ALJ's factual findings, and, accordingly, we summarize the pertinent facts below. The Department employed Kopsie, a registered nurse, to work at Wernersville State Hospital. A patient of Kopsie's injured him on March 25, 2005, during the course of Kopsie's employment. On April 14, 2005, Kopsie filed a claim with DPW for a work-related injury, and DPW recognized Kopsie's injuries as a "cervical strain/sprain." Based upon DPW's acceptance of this injury as being work-related, DPW approved Kopsie's claim for benefits under Act 534.
Kopsie returned to modified work at Wernersville in June 2005. A physician for an "employer physician panel" called WorkNet treated Kopsie. Kopsie underwent CAT scans of his cervical spine in April 2005 and July 2006. Also, in July 2006, Kopsie underwent an electromyography, or EMG, for purposes of evaluating cervical area issues, such as radiculopathy, plexopathy, and peripheral neuropathy. Richard G. Schmidt, M.D., a Board-certified orthopedic surgeon, reviewed Kopsie's medical records and, on May 30, 2008, performed an independent medical examination of Kopsie.
Dr. Schmidt issued a report, in which he opined that Kopsie sustained a "contusional injury" as a result of the incident with his patient. Dr. Schmidt's report suggests that any difficulty with movement Kopsie experiences is related to his weight and that
he has not demonstrated any objective evidence of any residua from the previous episode of March 25, 2005 . . . . would note tha[t] on clinical examination today, this patient's neck is nontender. He has a full range of motion of the cervical spine. Neurovascular examination is completely within normal limits as well. I would also note that this patient's mid back and lower back are nontender as well.(Reproduced Record (R.R.) at 11a-12a.) On May 30, 2008, Dr. Schmidt also signed a "Physician's Affidavit of Recovery," which described Kopsie's job duties and included a statement that, in Dr. Schmidt's opinion, "this individual is physically capable of performing the duties" of his job. (R.R. at 13a.)
DPW notified Kopsie that he should return to his pre-injury job on June 30, 2008. Kopsie did not return to his pre-injury job. On July 8, 2008, a WorkNet physician released Kopsie to his pre-injury job. Following that release, Kopsie asked Lewis Sharps, M.D., to examine him. Dr. Sharps examined Kopsie on July 21, 2008, and September 22, 2008. Dr. Sharps opined that Kopsie's condition consisted of a "traumatic aggravation of multilevel cervical discogenic disease, aggravation of a previous acromioplasty of the left shoulder with residual adhesive capsulitis, and aggravation of central canal stenosis." Dr. Sharps attributed all of these conditions to the March 25, 2005 work-related incident. (R.R. at 29a-30a.)
Dr. Schmidt performed a follow-up independent medical examination of Kopsie on December 15, 2008. Following his examination, Dr. Schmidt opined that Kopsie was completely recovered from his work injury and did not need any additional tests or treatment for his work injury. Dr. Schmidt also opined that Kopsie would benefit from weight reduction, but that recommendation was not related to his work injury.
DPW requested the Bureau to conduct a hearing to review DPW's decision to terminate Kopsie's Act 534 benefits. Both Dr. Schmidt and Dr. Sharps testified at the hearing before the ALJ. The ALJ found Dr. Schmidt's testimony credible and found Dr. Sharps' testimony not credible. The ALJ indicated that he did not find Dr. Sharps' testimony credible because Dr. Sharps based his opinion on Kopsie's subjective complaints, and that Dr. Sharps indicated that he found no objective evidence supporting Kopsie's subjective complaints. The ALJ also observed in response to Kopsie's characterization of Dr. Schmidt as a "hired gun," that Dr. Sharps received $4,300.00 in compensation for his testimony. Kopsie also testified regarding his condition, stating that he was afraid that another patient would assault him, that he had a hip problem, and that he had a lot of pain in his neck and shoulder. The ALJ, however, did not find Kopsie's testimony credible.
The ALJ opined, based upon his view of the testimony, that DPW correctly sought to terminate Kopsie's benefits under Act 534, and, thus, recommended termination of Act 534 benefits. In an order dated February 17, 2010, the Bureau's Chief Administrative Law Judge adopted the ALJ's recommendation and notified Kopsie of his right to seek reconsideration of the order by the Secretary and to appeal the order to this Court. Kopsie filed an application for reconsideration. The Acting Secretary granted reconsideration, but, on January 13, 2011, issued an order upholding the Bureau's February 17, 2010 order, adopting the ALJ's recommendation to terminate Kopsie's Act 534 benefits.
Kopsie petitioned for review of the Secretary's order to this Court. In his petition for review (PFR), Kopsie makes three primary claims. First, Kopsie asserts that the Secretary violated his due process rights by granting reconsideration, but then proceeding to issue an order upholding the Bureau's order without permitting a hearing, briefs, or argument. (PFR at 2, ¶ 3(a).) Second, Kopsie contends that the ALJ's decision contains "errors of law, ignored substantial evidence, and failed to address all of the relevant evidence" suggesting that Kopsie had not recovered fully from his work-related injuries. (PFR at 2, ¶ 3(b).) Third, Kopsie asserts that the doctrines of collateral estoppel and res judicata should have precluded DPW from terminating Kopsie's Act 534 benefits based upon the resolution of allegedly identical issues in workers' compensation proceedings, in which a workers' compensation judge (WCJ) denied DPW's termination petition seeking to terminate benefits to which Kopsie is entitled under the Workers' Compensation Act. (PFR at 2, ¶ 3(c).)
Our standard of review is limited to considering whether DPW's necessary factual findings are supported by substantial evidence, and whether DPW erred as a matter of law or violated any constitutional rights. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
DPW, as Kopsie's employer, appealed the WCJ's December 2, 2009 determination to the Workers' Compensation Appeal Board (WCAB). On March 11, 2011, the WCAB affirmed the WCJ's decision. Recently, this Court reversed the Board's order, concluding that DPW is entitled to a termination of Kopsie's workers' compensation benefits. Dep't of Pub. Welfare v. Workers' Comp. Appeal Bd. (Kopsie), (Pa. Cmwlth. 630 C.D. 2011, filed October 5, 2011).
At the outset of our discussion, we will first address various failures in the briefing efforts on the part of Kopsie, most of which, as discussed below, we conclude result in waiver. Initially, we note that the only issue Kopsie raises in his statement of the question presented is "[w]hether [DPW] erred in unilaterally and without any reasoning or due process, upholding [the ALJ's] decision, having previously granted [Kopsie]'s application for reconsideration of the same decision." Although this particular statement of the question presented appears only to refer to the first issue Kopsie identifies in his PFR, Kopsie addresses in his argument the other two issues—estoppel and the substantial evidence and legal error claims—he raises in the PFR.
Kopsie has waived the issue of whether the Secretary violated his due process rights. Kopsie asserts that the Secretary's initial grant of reconsideration "lulled him into a false sense of security" following the lapse between the grant of reconsideration and the Secretary's final order upholding the Bureau's adoption of the ALJ's recommendation. (Kopsie Brief at 11.) In claiming that the process DPW afforded him violated his due process rights, Kopsie, without any legal discussion, simply cites our Supreme Court's decision in Callahan v. Pennsylvania State Police, 494 Pa. 461, 431 A.2d 946 (1981). The failure of Kopsie to present any discussion of how this decision applies to the process employed in this case results in waiver of the issue. Pa. R.A.P. 2119.
Further, even if Kopsie had properly preserved this issue, procedural due process only requires the government to provide notice and an opportunity to be heard before the government may divest a person of a constitutionally protected interest. Goslin v. State Bd. of Med., 949 A.2d 372, 376 (Pa. Cwmlth. 2008). Kopsie had notice of his rights at all times during the process, and DPW afforded him a full hearing on the merits. Callahan, the decision to which Kopsie cites but fails to discuss, involved the question of whether an adjudication was valid when the government did not provide notice and an opportunity to be heard. In this case, the Secretary's order granting reconsideration did not constitute an adjudication, and thus, no opportunity to be heard upon that action was necessary.
Kopsie has also waived the issue of whether the doctrine of collateral estoppel applies. Kopsie is correct in arguing that collateral estoppel, or issue preclusion, may preclude one adjudicator from reaching a conclusion that differs from the conclusion another adjudicator has reached when the identical issue is presented to the second adjudicator. Dep't of Corr. v. Workers' Comp. Appeal Bd. (Wagner-Stover), 6 A.3d 603 (Pa. Cmwlth. 2010) (Wagner-Stover) (holding that workers' compensation judge could not disregard earlier adjudication of Secretary of Corrections that workers' compensation claimant had fully recovered from work-related injuries and was no longer eligible for benefits provided under former Act 632 to prison employees injured on job), appeal denied, ___ Pa. ___, 23 A.3d 1057 (2011). Kopsie, however, provides no discussion in his brief of the collateral estoppel doctrine and how the WCJ's decision satisfies the criteria for application of the doctrine. Accordingly, we view the issue as waived. Pa. R.A.P. 2119.
Act of December 8, 1959, P.L. 1718, No. 632, as amended, 61 P.S. § 951. Act 632 was repealed in 2009 when the legislature codified its provisions in 61 Pa. C.S. § 1101.
Additionally, we believe Kopsie also waived this issue by failing to raise it at the earliest opportunity. Dehus v. Unemployment Comp. Bd. of Review, 545 A.2d 434 (Pa. Cmwlth 1988). As indicated above, the WCJ issued his determination denying Employer's petition to terminate on December 2, 2009. Kopsie never sought to have the ALJ consider the WCJ's determination. Although the ALJ had completed his hearings at that time, the Chief Administrative Judge did not adopt the ALJ's recommendation until February 2010, and we see no reason why Kopsie could not have attempted to bring this issue to the adjudicator's attention in the interim. Further, although Kopsie mentioned the workers' compensation determination in his request for reconsideration before the Secretary, Kopsie did not specifically raise collateral estoppel as a basis for reconsideration. Further, even if Kopsie had properly raised collateral estoppel, we would have concluded that, because the ALJ in this case made a factual finding identifying a distinct work-related injury that differed from the injuries the WCJ identified, Kopsie does not appear to have satisfied all of the elements necessary for collateral estoppel to apply, specifically, that there exists an identity of issues. Wagner-Stover, 6 A.3d at 608-09.
In a similar manner, we conclude that Kopsie has waived his contention that the procedure DPW afforded him was unfair. Kopsie objects to the failure of DPW to notify him and/or provide him with the files of two witnesses who would testify at the hearing. According to Kopsie, DPW offered the testimony of one of those witnesses to demonstrate that Kopsie had an incentive to remain off-duty because of the full-salary benefit provided under Act 534. Kopsie also mentions the testimony of another witness who he claims testified regarding a different version of the incident that caused Kopsie's injuries. Kopsie makes no claim, however, how, even if he is correct in suggesting that the hearing was not fair, those alleged improprieties affected the ALJ's ultimate determination. In any event, Kopsie's failure to address the legal foundation of his claims results in waiver, because he fails to develop his argument through citations to the record and legal authority that supports his position. Pa. R.A.P. 2119. Consequently, we reject his argument.
Finally, Kopsie argues that the ALJ erred as a matter of law and rendered factual findings not supported by substantial evidence. First, Kopsie challenges the ALJ's determination that Kopsie's testimony was not credible. We reject this argument. The ALJ was the ultimate finder of fact, and this Court may not disturb the credibility determinations upon which those findings are based absent an abuse of discretion. Pinnacle Health Sys. v. Dep't of Pub. Welfare, 942 A.2d 189, 192 (Pa. Cmwlth. 2008).
Next, Kopsie asserts that the ALJ erred in finding Dr. Sharps' testimony not credible. Kopsie bases this challenge on the ALJ's reference to the fee Dr. Sharp received for his participation in the proceedings. Kopsie also charges that the ALJ erroneously based his credibility determination regarding Dr. Sharps on a misunderstanding of Dr. Sharps' examination and/or treatment of Kopsie. We disagree. Although Dr. Sharps' deposition testimony and the reports of Dr. Sharps that Kopsie submitted into the record indicate that Dr. Sharps not only examined Kopsie but also offered suggestions for treatment, Kopsie takes these observations of the ALJ out of context. The ALJ stated in his opinion that "[t]he main reason [I find Dr. Sharps' testimony not credible] is because Dr. Sharps' opinion was based upon Mr. Kopsie's subjective complaints." (R.R. at 197a.) The ALJ referenced Dr. Sharps' fee and the level of his contact with Kopsie in response to Kopsie's counsel's characterization of Dr. Schmidt as a "hired gun." The ALJ did not state that Dr. Sharps was not a treating physician, but suggested that Kopsie could not seek to impugn DPW's expert in such a way when Dr. Sharps only examined Kopsie on two occasions. Thus, we find no merit in Kopsie's challenge to the ALJ's determination that Dr. Sharps' testimony was not credible.
Kopsie also argues that Dr. Schmidt's testimony was not competent for two reasons: (1) Dr. Schmidt did not examine Kopsie's abdominal area; and (2) DPW's attempt to rehabilitate Dr. Schmidt's testimony through hypothetical questions do not alter Dr. Schmidt's alleged lack of understanding of Kopsie's work-related injuries. Dr. Schmidt's independent medical examination report indicates that Kopsie only identified his upper body and extremities as being involved in the work incident that caused his injuries. This limited examination appears to be consistent with the "cervical sprain/strain" that DPW acknowledged when it approved Kopsie for Act 534 benefits. Kopsie places emphasis on Dr. Schmidt's statement that Kopsie "may have experienced a contusional injury as a result of the impact," which he views as a statement suggesting that Dr. Schmidt did not acknowledge the injuries Kopsie sustained. We do not view this testimony as an indication that Dr. Schmidt did not understand the nature of the work-injury Kopsie sustained in the Act 534 context—a cervical sprain or strain. His testimony to the effect that tests performed following Kopsie's injury did not show disc herniation or radiculopathy in no way indicates that Dr. Schmidt did not know of or did not believe that Kopsie suffered a cervical sprain or strain.
Dr. Schmidt testified that he reviewed the earlier tests performed on Kopsie and considered the tests to suggest that Kopsie suffered non-traumatic degenerative changes in his cervical spine. We do not view these comments as refuting the identified cervical sprain or strain injury.
DPW posed the pivotal question to Dr. Schmidt as follows:
Q: Assuming [Kopsie's injury consists of a cervical strain or sprain and an abdominal strain] . . . do you have an opinion as to whether or not Mr. Kopsie had realized a full recovery of the cervical strain and/or abdominal strain and/or contusion that you just identified as of the date you conducted your evaluation on May 30, 2008?
A: Yes. My opinion was full recovery.(R.R. at 110a.) As noted above, the ALJ determined that the only injury DPW identified for the purpose of Act 534 benefits was a cervical sprain or strain. Although the proceedings before the WCJ appear to include an additional injury to Kopsie's abdominal area, the ALJ's factual findings reflect that DPW only accepted the cervical sprain or strain for the purpose of the Act 534 claim. Kopsie does not challenge this specific factual finding, and the record contains only one item of testimony, by a DPW witness, who stated that DPW, at least in the Act 534 context, recognized Kopsie's injury as a cervical sprain or strain. Consequently, regardless of whether DPW acknowledged an additional injury for the purpose of Kopsie's workers' compensation benefits, the only injury we may consider is the cervical sprain or strain.
While the rule of law in workers' compensation matters renders a medical opinion incompetent if a medical expert refuses to acknowledge an accepted injury, in this case, Dr. Schmidt did not testify that the identified work-related injury never existed. Based upon the question posed to him—whether, "assuming" that Kopsie had a cervical sprain or strain when he was injured, Dr. Schmidt believed Kopsie had fully recovered from that injury—Dr. Schmidt testified that he believed to a reasonable degree of medical certainty that Kopsie had fully recovered from those work-related injuries. That testimony is competent to support the ALJ's determination that Kopsie had fully recovered and was no longer entitled to Act 534 benefits.
See GA & FC Wagman, Inc. v. Workers' Comp. Appeal Bd. (Aucker), 785 A.2d 1087 (Pa. Cmwlth. 2001) (holding that medical testimony is not legally sufficient when expert testifies that employee has fully recovered from work-related injury but does not acknowledge injury identified in notice of compensation payable).
We reiterate that the ALJ rendered a factual finding that the injury DPW identified for the purpose of Kopsie's Act 534 benefits was cervical sprain and/or strain. Kopsie has not challenged that finding, and we are bound by it. --------
Based upon the foregoing, we conclude that the Secretary did not err in upholding the Bureau's adjudication. Accordingly, we affirm the order of the Department of Public Welfare.
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 13th day of October, 2011, the order of the Department of Public Welfare is AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge