Opinion
No. 725 C.D. 2014
03-26-2015
Jose Perez, Petitioner v. Workers' Compensation Appeal Board (Tube Methods, Inc.), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Jose Perez (Claimant) petitions for review of the April 9, 2014, order of the Workers' Compensation Appeal Board (WCAB) affirming the decision of a workers' compensation judge (WCJ). We affirm.
On October 29, 2004, Claimant suffered a work-related injury while working for Tube Methods, Inc. (Employer). On July 10, 2005, Employer issued a notice of compensation payable (NCP) for a "right thumb contusion," and Claimant began receiving total disability benefits. (WCJ's Decision, 8/13/07, Findings of Fact, No. 1.)
In December 2005, Employer filed a notification of modification/suspension, modifying Claimant's disability benefits to partial as of November 28, 2005, due to Claimant's return to work. Also in December 2005, Employer filed a second notification of modification/suspension, suspending Claimant's benefits as of December 14, 2005, based on Claimant's return to work with no loss of earnings. Claimant filed challenge petitions to both notifications. (Id., No. 2.)
On February 8, 2006, Employer filed a petition to suspend Claimant's benefits as of November 28, 2005, alleging that Claimant was offered a light-duty position as a buffer operator within his restrictions. Claimant filed an answer alleging that the light-duty position was not within his restrictions, causing him to stop working on January 26, 2006. (Id., No. 3.)
As to Employer's two December 2005 notification petitions, the WCJ issued a March 13, 2006, decision denying Claimant's challenge petition as to the first notification and granting Claimant's challenge petition as to the second notification. (Id., No. 4.)
On May 30, 2006, Employer filed a request for utilization review regarding prospective treatment prescribed to Claimant by Scott Fried, D.O. Mitchell E. Antin, D.O. issued a utilization review determination finding that the treatment was unreasonable and unnecessary. (Id., No. 5.)
On July 5, 2006, Claimant filed a petition to review the NCP (Review Petition 1), alleging that the description of his injury should be amended to include "status post right thumb CMC joint debridement and hemitrapeziectomy, status post right thumb CMC arthroplasty with hemitrapeziectomy, post-traumatic arthritis of the right thumb CMC joint, aggravation of osteoarthritis of the right basilar joint, [and] capsulary injury from CMC joint right." (Id., No. 6.) Employer filed an answer denying the allegations. (Id.)
On August 16, 2006, Claimant filed a petition to review the utilization review determination (UR petition), alleging that Dr. Fried's prospective treatment was reasonable and necessary. (Id., No. 7.)
On September 11, 2006, Claimant filed a second petition to review the NCP (Review Petition 2), seeking to amend the injury description to include "radial tunnel median neuropathy, right wrist, and radial neuropathy right wrist." (Id., No. 8.) Also on September 11, 2006, Claimant filed a penalty petition (Penalty Petition 1), alleging that Employer failed to preauthorize surgery for Claimant's right wrist. (Id.)
On December 26, 2006, Employer filed an amended NCP, amending Claimant's injury description to include a "contusion and aggravation of osteoarthritis of the CMC joint of the right thumb." (Id., No. 9.)
On August 13, 2007, the WCJ issued a decision denying Claimant's petitions. Specifically, the WCJ denied Claimant's UR petition, finding the prospective treatment unreasonable and unnecessary. The WCJ also denied Penalty Petition 1, concluding that the NCP only recognized an injury to the thumb, not the wrist, and the surgery Employer failed to preauthorize was for Claimant's right wrist. The WCJ denied Claimant's review petitions, concluding that Employer's medical experts were more credible than Claimant's. The WCJ granted Employer's suspension petition, concluding that Claimant could perform the light-duty buffer position offered to him, and suspended Claimant's benefits as of November 28, 2005. Claimant appealed to the WCAB.
On appeal, Claimant argued that the WCJ erred in denying his petitions and suspending benefits based on the light-duty buffer position because it required repetitive movement. Moreover, even if the position was available, a modification rather than a suspension should have occurred because the position would have resulted in a partial loss of earnings and benefits. Claimant also requested a remand for consideration of after-acquired evidence regarding an operative report by Scott Jaeger, M.D., who performed surgery on Claimant's thumb and wrist one week before the WCJ's August 13, 2007, decision.
On August 20, 2007, during the pendency of the appeal, Claimant filed a petition to reinstate benefits. Claimant alleged that his condition worsened as of August 6, 2007, and, as a result, he underwent surgery that was related to his work injury. (WCJ's Decision, 7/14/09, Findings of Fact, No. 3.)
On March 12, 2008, the WCJ issued an interlocutory order approving a stipulation of facts between Claimant and Employer, wherein Employer agreed to reinstate Claimant's benefits from August 7, 2007, through December 16, 2007, and then suspend Claimant's benefits thereafter. (Id., No. 4.)
On July 30, 2008, the WCAB issued an order affirming the WCJ's decision to amend the injury description but modifying it to include all work-related injuries admitted by Employer's medical expert. The WCAB vacated the remainder of the WCJ's decision and remanded for consideration of the after-acquired surgical evidence and dispositions of the petitions. (Id., No. 5.)
On September 9, 2008, Claimant filed a second penalty petition (Penalty Petition 2), alleging that after the WCAB vacated the WCJ's decision suspending Claimant's benefits, Employer failed to pay indemnity benefits under the NCP and also failed to pay for medical treatment causally related to Claimant's injuries. (Id., No. 6.)
In a remand decision and order of July 14, 2009, the WCJ discredited the testimony of Claimant's medical experts that Claimant's carpal tunnel syndrome, lateral epicondylitis, and radial tunnel syndrome were related to his work injury and, therefore, denied Claimant's Review Petition 2. The WCJ again credited Employer's evidence that it offered Claimant a position within his physical restrictions; Claimant could perform the position; and Claimant did not respond to the job offer in good faith. Therefore, the WCJ granted Employer's suspension petition effective November 28, 2005.
The WCJ granted Claimant's reinstatement petition in part, in accordance with the stipulation of facts entered into by the parties, and reinstated benefits from August 7, 2007, through December 16, 2007. The WCJ denied the remainder of the reinstatement petition, concluding that Claimant failed to prove that his condition worsened after December 17, 2007. The WCJ again denied Penalty Petition 1, concluding that Employer did not illegally suspend medical benefits when it refused to preauthorize Claimant's carpal tunnel surgery. The WCJ also denied Penalty Petition 2, concluding that Claimant failed to prove that Employer violated the Workers' Compensation Act (Act). The WCJ also granted Claimant's request for attorney's fees due to an unreasonable contest, finding that Employer's contest of Review Petition 1 was unreasonable because Employer's medical expert established that Claimant suffered more injuries than those listed on the NCP. Both parties appealed to the WCAB.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
In an order dated September 30, 2011, the WCAB reversed the denial of Penalty Petition 2, concluding that it was error for the WCJ to find that once the suspension petition was remanded, Employer was authorized to maintain the suspension as a supersedeas pending a final decision. The WCAB remanded and ordered the WCJ to make findings as to whether penalties should be assessed against Employer and whether Claimant was entitled to attorney's fees regarding Penalty Petition 2. The WCAB affirmed the WCJ in all other respects.
After remand, the WCJ issued a decision on December 14, 2011. The WCJ concluded that although Employer violated the Act, penalties were not warranted. The WCJ further ordered Employer to pay Claimant's attorney's fees in the amount of $2,000 for an unreasonable contest. Again, both parties appealed to the WCAB.
On April 9, 2014, the WCAB affirmed the WCJ's decision and re-certified its opinion and order dated September 30, 2011. This appeal followed.
Our review is limited to determining whether constitutional rights were violated, an error of law was committed, or necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704. --------
Initially, Claimant argues that the WCAB and the WCJ erred in not awarding all of his requested costs for Review Petition 1. Specifically, Claimant alleges that he should have been awarded $3,000 for Dr. Fried's deposition and the costs of necessary transcripts. We disagree.
If a claimant is successful in whole or in part in any litigated claim, reasonable costs must be awarded. Budd Company v. Workers' Compensation Appeal Board (Kan), 858 A.2d 170, 178-79 (Pa. Cmwlth. 2004). For litigation costs to be recoverable, the costs must be related to the matter at which the claimant prevailed. Jones v. Workers' Compensation Appeal Board (Steris Corporation), 874 A.2d 717, 721 (Pa. Cmwlth. 2005). Moreover, when more than one petition is at issue and the costs attributable to the successful petition cannot be segregated, a WCJ may estimate the costs associated with the successful petition. Budd, 858 A.2d at 178.
Here, Claimant presented the deposition testimony of Dr. Fried in support of Review Petition 1 and Review Petition 2 and in defense of Employer's suspension petition. Claimant, however, was only successful in Review Petition 1. In amending the description of Claimant's injury in Review Petition 1, the WCJ credited the testimony of Dr. Randall Culp and Dr. William H. Kirkpatrick and found Dr. Fried's testimony less credible. (WCJ's Decision, 7/14/09, Findings of Fact, Nos. 13, 14.) The WCJ also found Dr. Fried's testimony, regarding additional diagnoses not persuasive. Thus, although successful in Review Petition 1, Claimant's success was not based on the deposition testimony of Dr. Fried. Therefore, the WCJ did not err in failing to award Claimant the cost of Dr. Fried's deposition.
Claimant also contends that he is entitled to an award of penalties because Employer failed to reinstate benefits in violation of the Act. Although Employer failed to reinstate Claimant's benefits during the pendency of the litigation, the WCJ determined that penalties were not warranted. A violation of the Act does not mandate imposition of a penalty. Loose v. Workmen's Compensation Appeal Board (John H. Smith Arco Station), 601 A.2d 491, 494 (Pa. Cmwlth. 1991). A WCJ has the discretion to impose penalties. Id. Here, the WCJ explained that Employer mistakenly believed that the WCJ's prior interlocutory order had the same effect as the grant of a supersedeas. Because Employer acted in good faith, albeit mistakenly, the WCJ did not impose a penalty. The WCJ acted within his discretion.
Next, Claimant argues that the WCAB erred in affirming the WCJ's decision to suspend Claimant's benefits as of November 28, 2005. Claimant maintains that he was released to return to work but was restricted to lifting no more than 20 pounds with no repetitive use of the right hand. Claimant argues that Employer failed to produce evidence of an available job within those restrictions. We disagree.
Matthew Mankus testified on behalf of Employer that Claimant was offered a sedentary, light-duty position as a buffer operator. (WCJ's Decision, 7/14/09, Findings of Fact, No. 19.) He further testified that the buffer position did not require extensive use of the right hand. (Id.)
The WCJ credited the medical testimony of Employer's experts, Dr. Culp and Dr. Kirkpatrick. Dr. Kirkpatrick went to Employer's site, observed the buffer operator position being performed, which included the use of a right-to-left feed machine, and concluded that Claimant was capable of performing the position. Dr. Culp reviewed the job description and also opined that Claimant could perform the duties of a buffer operator.
Although Claimant argues that he cannot perform the buffer position, the WCJ credited Employer's witnesses' testimony that the position is within his restrictions. The WCJ is the sole determiner of credibility. Rissi v. Workers' Compensation Appeal Board, (Tony DePaul & Son), 808 A.2d 274, 278 (Pa. Cmwlth. 2002).
Finally, Claimant contends that the WCAB erred in affirming the WCJ's dismissal of Claimant's Review Petition 2. In Review Petition 2, Claimant sought to expand the NCP's description of his work-related injury to include radial tunnel and median and radial neuropathy of the right wrist. A claimant seeking to add an injury to the description of an NCP bears the same burden as a claimant in a claim petition. Westinghouse Electric Corporation/CBS v. Workers' Compensation Appeal Board (Korach), 883 A.2d 579, 592 (Pa. 2005).
Here, the WCJ found the testimony of Drs. Fried and Jaeger, regarding additional work-related diagnoses, not persuasive. (WCJ's Decision, 7/14/09, Findings of Fact, No. 13.) The WCJ concluded that their testimony was not consistent with Claimant's physical abilities as depicted on a surveillance video. (Id.) The WCJ credited the testimony of Drs. Culp and Kirkpatrick that any alleged diagnoses, including carpal tunnel syndrome, lateral epicondylitis, and radial tunnel syndrome, were unrelated to the October 29, 2004, work injury.
Claimant argues that Dr. Culp's and Dr. Kirkpatrick's testimony should not be credited because they failed to review all of Claimant's records. However, the WCJ determines the weight and credibility of the evidence and may accept or reject the testimony of any witness. Lombardo v. Workers' Compensation Appeal Board (Topps Company, Inc.), 698 A.2d 1378, 1381 (Pa. Cmwlth. 1997). Moreover, the failure of a medical witness to review all of a claimant's medical records goes to the weight of the witness's testimony, not its competency. Huddy v. Workers' Compensation Appeal Board (U.S. Air), 905 A.2d 589, 593 n.9 (Pa. Cmwlth. 2006) (en banc). The WCJ did not err in making his credibility determinations. Therefore, the WCAB did not err in affirming the WCJ's dismissal of Review Petition 2.
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 26th day of March, 2015, we hereby affirm the April 9, 2014, order of the Workers' Compensation Appeal Board.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge