Opinion
No. 1832 C.D. 2011
04-30-2012
James Pickett, Petitioner v. Workers' Compensation Appeal Board (P&N Packing), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
James Pickett (Claimant) petitions for review of an August 29, 2011, order of the Workers' Compensation Appeal Board (WCAB), which affirmed the decision of a workers' compensation judge (WCJ) granting P&N Packing's (Employer) suspension/modification petition and denying Claimant's review petition. We affirm.
On May 16, 2008, Claimant, while working at Employer's meat-packing plant, sustained a work injury recognized in the notice of compensation payable (NCP) as a right scapular dislocation/disruption. Claimant began receiving total disability payments on May 17, 2008. (WCJ's Findings of Fact, No. 4.)
On August 20, 2008, Claimant returned to work in a light-duty capacity without loss of earnings. The WCJ suspended benefits from August 20, 2008, through August 28, 2008, and reinstated benefits beginning August 29, 2008. (WCJ's Findings of Fact, No. 5.)
On September 18, 2008, Employer filed petitions to modify and/or suspend Claimant's benefits. Employer alleged that Claimant had returned to work and, thus, had an earning capacity, which he failed to disclose. (WCJ's Findings of Fact, Nos. 1, 6.) On October 23, 2008, an interim/interlocutory order was issued wherein the WCJ concluded that Employer was entitled to a supersedeas based upon surveillance activity and other submitted evidence. Claimant was awarded one-half of his temporary total disability benefits through the duration of the litigation. (WCJ's Findings of Fact, No. 6.)
On December 9, 2008, Employer filed a second petition to suspend benefits. Employer alleged that Claimant returned to a light-duty desk job on November 3, 2008, but stopped working after six days. Claimant did not file an answer. (WCJ's Findings of Fact, Nos. 2, 7, 11.)
On January 28, 2009, Claimant filed a petition to review compensation benefits, alleging an incorrect description of his injury in the NCP. Claimant averred that the NCP should be amended to include a long thoracic nerve injury with radiculopathy, and neck and cervical pain with radiculopathy. Employer filed a timely answer denying the allegations. (WCJ's Findings of Fact, No. 3.)
Hearings were held before the WCJ. Claimant testified on his own behalf, identifying a work injury to his right shoulder which he sustained when pulling down the tail of a calf with his left arm and using his right arm to cut. (WCJ's Findings of Fact, No. 9.) Claimant further testified that he returned to a light-duty position, on August 21, 2008, cleaning meat hooks and chasing calves for Employer. (WCJ's Findings of Fact, No. 10.) Claimant complained that his right arm bothered him and he could no longer perform the job with his right arm. Claimant stopped working on August 21, 2008. (Id.)
Claimant acknowledged that, in September 2008, he was released to return to work but not to use his right arm. On October 27, 2008, Employer offered Claimant a desk job. Claimant returned to work on November 3, 2008, and worked for six days. (WCJ's Findings of Fact, No. 11.) Claimant testified that, on January 22, 2009, Employer offered him another job as a "greeter," but he did not return to work. (WCJ's Findings of Fact, No. 12.)
Claimant further stated that he started a lawn mowing business in 2007 called "Pickett's Lawn Service." Claimant acknowledged that he mowed some lawns in 2007 and 2008, but denied mowing any lawns in 2009. (WCJ's Findings of Fact, No. 13.) Claimant indicated that, at the time of the hearing on October 21, 2009, his lawn service business no longer existed. (WCJ's Findings of Fact, No. 14.)
Employer presented the testimony of Peter Fleschut, investigator for Ratchford Investigative Agency, Inc. Fleschut testified that, on August 8, 2008, he was assigned to conduct surveillance of Claimant. Fleschut conducted surveillance of Claimant on August 15, 20, and 27, 2008. (WCJ's Findings of Fact, No. 22.) Fleschut testified that he observed Claimant without a sling all three days, carrying items, swinging his right arm freely, operating a Kubota tractor while using his right arm, using his right arm while mowing lawns and using a gas-powered steel leaf blower. (WCJ's Findings of Fact, Nos. 23-25.)
Employer presented the testimony of Claimant's treating physician, William R. Prebola, M.D. Dr. Prebola testified that he first treated Claimant on August 15, 2008, when Claimant came to him with shoulder discomfort due to a work injury that occurred on May 16, 2008. Dr. Prebola indicated that the back part of Claimant's right shoulder was injured and Claimant had a suprascapular injury. At that time, Dr. Prebola found Claimant capable of returning to work; however, he only released him for light-duty work, limiting the use of his right upper extremity. Claimant was limited to lifting 20 pounds occasionally, 10 pounds frequently and no overhead or shoulder level activity with the right upper extremity. (WCJ's Findings of Fact, No. 27.)
Dr. Prebola reviewed the position Employer offered Claimant on October 27, 2008. Dr. Prebola opined that the position would not be difficult for Claimant because it only involved the hand or wrist, not the arm or shoulder. Dr. Prebola did not place any restrictions on Claimant's arm for handwriting, fine manipulation or simple grasping. (WCJ's Findings of Fact, No 28.)
Claimant presented the testimony of Jason A. Stein, M.D. Dr. Stein first saw Claimant on March 3, 2009, and opined that Claimant had a long thoracic nerve injury leading to medial winging of his scapula that caused dysfunction and pain in his shoulder. Dr. Stein stated that this injury "is very consistent with the [work] injury that he described to me." (WCJ's Findings of Fact, No. 28.) Dr. Stein advised Claimant to have split pec major reconstruction surgery to repair the winging of the shoulder. Claimant underwent the surgery on April 13, 2009. Dr. Stein released Claimant from his care on December 8, 2009; however, he did not release him to any certain type of work. Dr. Stein noted that Claimant needed to go through work hardening and a functional capacity evaluation before a determination could be made regarding what type of work Claimant could or could not perform. Dr. Stein opined that Claimant would likely be permanently disabled. (WCJ's Findings of Fact, No. 28.)
On cross-examination Dr. Stein acknowledged that Claimant had no restrictions on his left arm and did not sustain a work injury to his neck. Dr. Stein stated that he did not disagree with Dr. Prebola's course of treatment and, further, he could not answer whether Claimant could write with his right arm due to the work injury. Dr. Stein acknowledged that he reviewed the surveillance video of Claimant driving his pick-up truck, but testified he did not see Claimant mowing the lawn with a push mower or riding mower or using a leaf blower. Dr. Stein released Claimant to "some type of work" on August 22, 2009. (WCJ's Findings of Fact, No. 29.)
The WCJ accepted the testimony of Dr. Prebola and Fleschut as credible. The WCJ found that, following Claimant's work injury of May 16, 2008, Employer made work within Claimant's restrictions available to Claimant, asking Claimant to return to work on November 3, 2008. Claimant stopped working as of November 11, 2008, despite being physically capable of performing the work. The WCJ suspended Claimant's benefits as of November 3, 2008, based upon the availability of the desk job with Employer. The WCJ further stated that Claimant's benefits would remain suspended from April 13, 2009, after Claimant's surgery, through August 22, 2009, when Dr. Stein released Claimant to return to work. (WCJ's Findings of Fact, No. 30.)
The WCJ rejected Claimant's testimony that he was unable to continue at the desk job offered in November 2008 as not credible. The WCJ stated that Claimant's activities were inconsistent with Claimant's testimony regarding his inability to perform the November 2008 desk job. (WCJ's Findings of Fact, No. 32.)
Further, the WCJ found that Claimant failed to prove through Dr. Stein's testimony that Claimant's surgery on April 13, 2009, was, in fact, due to Claimant's work injury because Dr. Stein was clearly unaware of Claimant's outside lawn mowing activities, which could have "had some bearing on the Claimant's actual physical condition. . . ." (Id.) The WCJ found that the medical evidence did not unequivocally establish that the surgery was due to the work injury. (Id.)
On June 21, 2010, the WCJ granted Employer's petitions to modify and/or suspend Claimant's benefits and suspended Claimant's benefits effective November 3, 2008, and continuing thereafter. The WCJ further denied and dismissed Claimant's petition to review compensation benefits. The WCJ also determined that Employer continues to remain liable for payment of Claimant's reasonable and necessary medical expenses associated with Claimant's work injury. Claimant appealed to the WCAB, which affirmed. Claimant's petition for review to this court followed.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law and whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
Initially, Claimant contends that the WCAB erred in failing to reopen the record due to discoverable evidence being withheld from Claimant. Unfortunately, Claimant failed to raise this issue in his appeal before the WCAB, so it is waived. See Allen v. Workers' Compensation Appeal Board (Delaware County SPCA, Inc.), 34 A.3d 874, 876 n.4 (Pa. Cmwlth. 2011).
Next, Claimant contends that the WCJ erred in denying Claimant's review petition because the WCJ failed to give controlling weight to the EMG results even though all of the medical experts testified that a diagnostic EMG/nerve conduction study is the definitive test to determine the nature and extent of nerve damage to Claimant's right upper extremity. We disagree.
In a review petition, a claimant has the burden of proving that a material mistake of fact or law was made at the time the NCP was issued. Namani v. Workers' Compensation Appeal Board (A. Duie Pyle), 32 A.3d 850, 856 (Pa. Cmwlth. 2011). To add an injury, a claimant bears the same burden as in a claim petition. Liveringhouse v. Workers' Compensation Appeal Board (ADECCO), 970 A.2d 508, 512 (Pa. Cmwlth. 2009). A claimant must prove all of the elements to support the award, including the existence of a work-related injury resulting in disability. Inglis House v. Workmen's Compensation Appeal Board (Reedy), 535 Pa. 135, 141, 634 A.2d 592, 595 (1993). Where the connection between the work incident and the claimed injury is not obvious, a claimant must prove by unequivocal medical evidence that the work incident caused the injury. Jeannette District Memorial Hospital v. Workmen's Compensation Appeal Board (Mesich), 668 A.2d 249, 251 (Pa. Cmwlth. 1995).
As we explained:
'An NCP is materially incorrect if the accepted injury fails to include all of the injuries that the claimant suffered in the work incident.' Where there is no obvious connection between the accepted work-related injury and any alleged additional work-related injuries, the burden is on the claimant to prove causation with respect to amending the description of the injury contained in the NCP. To meet that burden, the claimant must present unequivocal medical evidence of causation.
Here, the WCJ found that Claimant failed to prove a causal connection between the work injury and the claimed new injury. The WCJ believed that Claimant's injury may have been caused by something other than the work-related injury, i.e., his lawn service work. The WCJ determined that Claimant failed to present sufficient evidence to support that the new injury was caused by Claimant's work injury. The results of Claimant's EMG test were irrelevant to this determination as they do not state the cause of the injury, only the nature and extent of Claimant's nerve damage. We, therefore, conclude that the WCJ did not err in this regard.
Credibility determinations are for the WCJ, not this court. Phoenixville Hospital v. Workers' Compensation Appeal Board (Shoap), 2 A.3d 689, 698 (Pa. Cmwlth. 2010), appeal granted, ___ Pa. ___, 18 A.3d 1093 (2011). --------
Finally, Claimant contends that the WCAB erred in determining that Claimant was overpaid and in deducting the overpayment from any benefits due Claimant from April 13, 2009, through August 22, 2009, when Claimant was recovering from surgery. Again, we disagree.
A claimant is entitled to benefits unless it can be shown that his loss in earnings does not result from the disability due to his work injury. Section 423 of the Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §772.
Here, as stated above, the WCJ determined that Claimant failed to prove a causal connection between the surgery and the acknowledged work-related injury. Therefore, Claimant was not entitled to any benefits between April 13, 2009, and August 22, 2009, when he was recovering from the surgery. The WCAB did not err in determining that it need not address whether the WCJ's calculations were correct, as there was no basis for an award of benefits during that time frame.
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 30th day of April, 2012, the order of the Workers' Compensation Appeal Board, dated August 29, 2011, is hereby affirmed.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
Namani, 32 A.3d at 856 n.4 (citations omitted).