Opinion
No. 916 C.D. 2014
02-17-2015
Ronanda Q. Palmer, Petitioner v. Workers' Compensation Appeal Board (Associates in Counseling and Child Guidance), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Ronanda Q. Palmer (Claimant) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) that reinstated Claimant's compensation benefits for a closed period. In doing so, the Board affirmed the decision of the Workers' Compensation Judge (WCJ) that Claimant was fully recovered from the work injury that was the subject of Claimant's reinstatement petition. For the reasons that follow, we vacate and remand.
Claimant worked for Associates in Counseling and Child Guidance (Employer) from April 20, 1998, to August 23, 2011, supervising troubled children. On March 22, 2011, after dropping off a client, Claimant drove to Employer's office. While waiting to turn left into Employer's parking lot, Claimant's vehicle was struck from behind by another vehicle. The impact knocked Claimant unconscious for a short period of time. When she regained consciousness, Claimant parked her car and informed Employer of the accident. Claimant then drove herself to St. Elizabeth's Emergency Room in Boardman, Ohio. The doctors in the emergency room gave her pain medication, took x-rays, and diagnosed her with various sprains and strains. Claimant took two and a half days off from work to recover from the accident and then returned to work.
On April 7, 2011, Employer issued a Notice of Compensation Denial (NCD) describing Claimant's injury as "sprains [and] strains" in "multiple body parts." NCD, filed April 7, 2011. Employer checked box 4 on the NCD form, stating that "[a]lthough an injury took place, [Claimant] is not disabled as a result of this injury within the meaning of the Workers' Compensation Act" (Act). Id. Claimant did not contest the NCD.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.1, 2501 - 2708.
On August 25, 2011, Claimant underwent surgery to her right knee. Claimant filed a reinstatement petition, checking boxes 12 and 13 on the petition and stating that she had suffered a "[w]orsening of [her c]ondition" and her "[i]njury [was c]ausing [d]ecreased [e]arning [p]ower." Reproduced Record at 2a (R.R. ___). On February 24, 2012, Employer filed a termination petition contending that Claimant had fully recovered from her work injury as of January 16, 2012, the date she underwent an independent medical examination. The petitions were consolidated and the matter was assigned to a WCJ, who conducted hearings.
Claimant testified that shortly after the accident she began seeing Robert Piston, M.D., a board-certified orthopedic surgeon. Claimant explained that Dr. Piston ran a series of tests on Claimant, including MRIs and x-rays. Eventually, Dr. Piston performed arthroscopic surgery on Claimant's right knee on August 25, 2011. Claimant testified that she stopped working one or two days before the surgery and has not returned. Claimant testified that she saw Dr. Piston twice a week for physical therapy following her surgery.
Claimant also offered Dr. Piston's deposition testimony. Dr. Piston diagnosed Claimant with traumatic chondromalacia at the patella, medial tibial plateau, and synovitis in her right knee; chondromalacia of the patella in her left knee; impingement syndrome, subacromial bursitis, rotator cuff tendonitis, biceps tendonitis, and acromioclavicular joint inflammation in her right shoulder; neuropathies, including carpal tunnel syndrome and mild ulnar nerve neuropathy in her right arm; costochondritis; right radial tunnel syndrome; and memory loss. Dr. Piston opined that his diagnoses, which were in addition to the "sprains and strains" identified in the NCD, were attributable to Claimant's March 22, 2011, car accident. Dr. Piston testified that Claimant's costochondritis and her left knee problems did not arise until after she began using crutches because of her right knee surgery.
On cross-examination, Employer questioned Dr. Piston about the emergency room doctors' diagnosis of sprains and strains. Dr. Piston responded:
I can tell from [the emergency room report] that she was not oriented. [The ER doctors] were concerned mainly with her neck. That would be the extent of what an emergency room would do unless there was a visible fracture or something like that. The ER wouldn't take care of a bruise to the kneecap unless it was the predominant problem.
[Claimant] came in [the emergency room] obviously disoriented and with a neck and shoulder strain. They called it a cervical strain, motor vehicle accident, and treated her for the
neck injury. After leaving the ER, she goes to her chiropractor the next day and begins to feel the result of this impact. It ended up being multiple locations.R.R. 187a-188a. Dr. Piston rejected any suggestion that Claimant was exaggerating her injury. When asked if he would allow Claimant to return to work, Dr. Piston testified that he "would release her on a limited basis to try it." R.R. 181a. However, Dr. Piston clarified that "if she said to me today, I want to go back to full work with no restrictions, I would not permit her to do that without my guidance." R.R. 182a-183a.
Employer presented the deposition of Victor Thomas, M.D., a board-certified orthopedic surgeon who did an independent medical examination (IME) of Claimant on January 16, 2012. He also reviewed Claimant's medical history, Dr. Piston's deposition, and the report from St. Elizabeth's emergency room. Dr. Thomas disagreed with many of Dr. Piston's conclusions. For instance, Dr. Thomas attributed the poor condition of Claimant's knees to her morbid obesity, not the car accident. Dr. Thomas also believed Claimant was malingering, testifying that
Dr. Thomas noted that Claimant is 5 feet, 4 inches tall and weighs 260 pounds.
it's my opinion that [Claimant] is engaged in symptom magnification...from her subjective complaints, from what she told me, I would not agree that she, based on her account...has made steady improvement. She still complained of her entire body when I saw [her] more than nine months later for what I would characterize [as] nothing more [than] minor sprains and strains.R.R. at 224a. Dr. Thomas testified that he would not put any work restrictions on Claimant.
The WCJ granted Claimant's petition, reinstating benefits for the period from August 23, 2011, to January 16, 2012, the date of Dr. Thomas' IME. The WCJ reinstated benefits after finding that Claimant and Dr. Piston had testified credibly about Claimant's condition prior to Dr. Thomas' IME. Because the WCJ found Dr. Thomas more credible on Claimant's condition after January 16, 2012, he terminated benefits that day. Claimant appealed and the Board affirmed. Claimant now petitions for this Court's review.
On appeal, Claimant argues that the Board erred in granting Employer's termination petition. Claimant contends that her reinstatement petition functioned as a review petition and that by finding Dr. Piston credible, the WCJ implicitly amended the NCD to include all of the additional injuries identified by Dr. Piston. Accordingly, Employer did not meet its burden of showing that Claimant was no longer disabled because Dr. Thomas' testimony addressed only Claimant's sprains and strains. Employer responds that the WCJ did not amend the NCD but, assuming arguendo he did, Dr. Thomas' testimony supports the finding that Claimant was not disabled after January 16, 2012. Employer argues that it was Claimant's burden to prove a disability after January 16, 2012, and she did not. Alternatively, Employer asserts that to the extent the WCJ's findings are unclear, the case should be remanded. We agree that the WCJ's findings require a remand.
When examining orders of the Board, this Court's scope of review is limited to considering whether constitutional rights were violated, Board procedures were violated, and the necessary findings are supported by substantial evidence. City of Philadelphia v. Workers' Compensation Appeal Board (Smith), 946 A.2d 130, 135 n.10 (Pa. Cmwlth. 2008).
A termination of benefits is proper where the employer proves that the claimant fully recovered from the work injury and has no remaining disability, or that any remaining disability is no longer related to the work injury. Campbell v. Workers' Compensation Appeal Board (Antietam Valley Animal Hospital), 705 A.2d 503, 506-507 (Pa. Cmwlth. 1998). In order to determine whether a termination of benefits as of the IME date was proper, we must consider whether the WCJ expanded the list of injuries identified in the NCD to include the additional diagnoses by Dr. Piston. Section 413(a) of the Act, 77 P.S. §§771, 772, grants the WCJ authority to amend a materially incorrect NCD. Cinram Manufacturing, Inc. v. Workers' Compensation Appeal Board (Hill), 975 A.2d 577, 580 (Pa. 2009). On this point, our Supreme Court has explained:
Section 413(a) is split into two separate provisions in Purdon's: 77 P.S. §§771 and 772. It states:
A workers' compensation judge may, at any time, review and modify or set aside a notice of compensation payable and an original or supplemental agreement or upon petition filed by either party with the department, or in the course of the proceedings under any petition pending before such workers' compensation judge, it is be proved that such notice of compensation payable or agreement was in any material respect incorrect.77 P.S. §771. The second provision states, in relevant part:
A workers' compensation judge designated by the department may, at any time, modify, reinstate, or terminate a notice of compensation payable, an original or supplemental agreement or an award of the department of its workers' compensation judge, upon petition filed by either party with the department, upon proof that the disability of an injured employe has increased, decreased, recurred, or has temporarily or finally ceased, or that the status of any dependent has changed.77 P.S. §772.
[I]t is apparent that the Legislature intended to allow corrective amendments at any time and in any procedural context; whereas, amendments based on consequential conditions are to be made only upon consideration of a specific review petition.Cinram, 975 A.2d at 580 (emphasis added). The claimant bears the burden of proving she sustained additional compensable work injuries besides those accepted by the employer. Id. at 582.
If a WCJ finds that the work injury includes additional conditions not described in the operative Bureau documents, benefits will not be terminated unless there is evidence of a full recovery from those conditions. City of Philadelphia v. Workers' Compensation Appeal Board (Smith), 946 A.2d 130, 137 (Pa. Cmwlth. 2008). However, the WCJ must make a finding about the extent of the work injury.
Sears Logistic Services v. Workers' Compensation Appeal Board (Preston), 937 A.2d 1151 (Pa. Cmwlth. 2007), is instructive. In that case, a claimant fell at work, twisting his leg. The employer filed an NCP acknowledging that the claimant had suffered "bruised knees." Id. at 1151. The employer later filed a termination petition. At the hearing before the WCJ, the claimant presented his doctor's testimony, which opined that the claimant suffered more than bruised knees in the accident. The WCJ found the claimant's doctor was credible, and denied the employer's termination petition. The employer appealed to this Court, arguing that it was entitled to a termination because it proved full recovery from the accepted work injury and the WCJ erred in amending the claimant's NCP.
This Court remanded the matter to the WCJ to determine whether "the NCP issued by [the employer] was incorrect at the time it was issued." Id. at 1156. We stressed that even though the claimant presented evidence that the additional injuries occurred at the time of his work injury, the WCJ needed to make a specific finding to that effect in order to amend the NCP and deny the termination petition.
Here, as in Sears Logistic Services, the WCJ's findings of fact are inadequate for effective appellate review. Claimant sustained a work injury in the March 22, 2011, automobile accident described by Employer as "sprains [and] strains" in "multiple body parts," but continued to work until her right knee surgery in August 2011. The WCJ granted Claimant's reinstatement petition and awarded total disability benefits from August 23, 2011, up to the IME on January 16, 2012. Reinstatement is warranted if the loss of earning power is attributable to the work injury. Bufford v. Workers' Compensation Appeal Board (North American Telecom), 2 A.3d 548, 558 (Pa. 2010). Stated otherwise, the WCJ found that Claimant's work injury resulted in a loss of earnings when she underwent right knee surgery. The reinstatement of total disability benefits has not been appealed.
However, the WCJ never specified what conditions constitute Claimant's work injury; this makes it impossible to review whether the termination of Claimant's benefits was proper. The WCJ found Claimant and Dr. Piston credible about Claimant's condition up to the IME date, and Dr. Thomas credible as of the date of the IME on January 16, 2012. Dr. Piston and Dr. Thomas fundamentally disagreed on the nature and extent of the work injury. Because benefits may be terminated where the work injury no longer causes a lack of earning power, the WCJ must make specific findings of which conditions are included in the work injury. The WCJ must explicitly amend the NCD, which actually functions as a medical-only NCP, to include any additional injuries. Although the WCJ is empowered to accept the testimony of any witness in whole or in part, the WCJ's credibility determinations must explain whether the medical opinions support a termination of benefits for the established work injury. In sum, after identifying which of Claimant's conditions are part of the work injury, the WCJ must make findings as to whether the evidence supports a determination that Claimant fully recovered and is no longer disabled by those conditions.
If the additional injuries were present on March 22, 2011, then the NCD was materially incorrect, and the WCJ could amend the NCD without a review petition. However, if Claimant's injuries did not develop until after the NCD was filed, then the NCD could not be amended without Claimant having filed a review petition.
Greenwich Collieries v. Workmen's Compensation Appeal Board (Buck), 664 A.2d 703, 706 (Pa. Cmwlth. 1995). --------
Accordingly, we vacate the portion of the Board's order affirming the grant of the termination petition and remand this matter to the Board with instructions to remand to the WCJ to make additional findings of fact in accordance with this opinion.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 17th day of February, 2015, the adjudication of the Workers' Compensation Appeal Board dated May 16, 2014, is hereby VACATED with respect to the grant of the termination petition. This matter is REMANDED for further proceedings in accordance with this opinion.
Jurisdiction relinquished.
/s/_________
MARY HANNAH LEAVITT, Judge