IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Gary Litts, : Petitioner : : v. : No C.D : Workers' Compensation Appeal : Submitted: October 31, 2008 Board (Rossi, T/A Rossi Construction), : Respondents : BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SIMPSON FILED: January 6, 2009 In this workers compensation appeal, Gary Litts (Claimant) assigns error in a Workers Compensation Judge (WCJ) order modifying his total disability benefits. He claims the modification is improper because his Employer, Paul Rossi t/a Paul Rossi Construction, failed to prove a change in his physical condition as of the last disability determination. Claimant also asserts the WCJ erred by reopening the record for additional fact testimony and failing to award litigation costs and counsel fees. Discerning no merit in Claimant s assertions, we affirm. I. Facts Claimant worked for Employer as a bricklayer. In September 1999, Claimant sustained a work injury when he fell off scaffolding and hit the side of a building. His injuries included a left leg fracture and cervical and lumbar injuries. Employer issued a notice of compensation payable accepting Claimant s injuries.

2 WCJ Op., 7/30/07, Finding of Fact (F.F.) No. 1. Claimant began receiving total disability benefits. A. First WCJ Proceedings In February 2003, Employer filed a petition to modify or suspend Claimant s benefits as of September 18, Employer alleged its medical expert released Claimant to work and its vocational expert located suitable employment but Claimant failed to return to work. Workers Compensation Judge Joseph Grady (First WCJ) heard Employer s petition and made the following relevant findings: 6. Claimant presented medical testimony herein from Leroy J. Pelicci, M.D. At the time of his testimony herein, Dr. Pelicci indicated that he has been treating [Claimant] for approximately three and one-half (3½) years. Dr. Pelicci has diagnosed [Claimant] with a tear of his perineal longus tendon, and disc herniation at C5- C6, L4-L5 and L5-S1, T11-T12 and L3-L4. Dr. Pelicci found that [Claimant] continues to complain of pain to his ankle, neck and low back and resultant from the same requires monthly injections as well as various pain medications. Dr. Pelicci opined that [Claimant] is not physically capable of performing any type of work on a consistent basis given his medical condition, specifically opining that the four (4) jobs referred to [Claimant] by [Employer s vocational expert] [C]laimant could not perform on any consistent level. 7. Claimant also presented the medical testimony herein from Sofia Lam, M.D. Dr. Lam first saw [Claimant] in April Dr. Lam described that [C]laimant at that time complained of low back pain radiating into his right lower extremity. Dr. Lam s treatment consisted of various injections, nerve block treatments as well as prescriptions for Lorcet and Ambien. Dr. Lam also opined that [Claimant] was not physically capable of 2

3 returning to any of the four (4) positions located for him by [Employer s vocational expert]. First WCJ Op. 7/23/04, F.F. No. 6, 8 (emphasis added). Crediting the testimony of Claimant s physicians, First WCJ found Claimant was incapable of returning to work in any capacity. Accordingly, First WCJ denied Employer s petition. B. Second WCJ Proceedings In December 2006, Employer filed a second petition to modify or suspend benefits, which is the subject of this appeal. Employer asserted, based on an independent medical examination (IME) and an earning power assessment, that as of June 10, 2005 Claimant was capable of returning to work and work was generally available which he could perform. WCJ Howard Spizer (Second WCJ) heard the matter. In support of its petition, Employer presented the deposition testimony of Dr. Michael D. Wolk (Employer s physician), who is board certified in physical medicine and rehabilitation. Based on Claimant s history, a review of his medical records, including multiple imaging studies, prior IMEs, and an updated MRI and CT scan of Claimant s left ankle, Employer s Physician opined Claimant continued to have residual difficulties in the left ankle, a cervical strain and disc syndrome, a lumbar strain and multiple level lumbar disc problems. Of particular note, Employer s physician found no objective evidence of significant radiculopathy or evidence of spasm, but evidence of symptom magnification such that subjective complaints were out of proportion to the true objective findings. In [Employer s physician s] opinion, [Claimant] has fully recovered from 3

4 the fracture itself of the left low leg and ankle, and is capable of returning to some form of gainful employment. He was found capable of performing lightduty work, based upon the objective examination. Second WCJ Op., 7/30/07, F.F. No. 5 (emphasis added). Employer s physician approved three positions, detailed below, as within Claimant s physical capabilities. Employer also presented the testimony of Francis Terry (vocational expert), a vocational case manager for Concentra Integrated Services. Vocational expert prepared the prior and current earning power assessments. After explaining her procedures in conducting an earning power assessment, vocational expert testified she located three positions that Employer s physician approved. Vocational expert located a telemarketer position with Dial America, a customer service representative with Keystone Automotive, and a catalog sales representative with J.C. Penny Company. All positions involved telephone work and were entry level. They were available in September 2005 and paid $280 to $340 per week. In response, Claimant presented the testimony of Dr. Sofia Lam (Claimant s doctor), who is board certified in anesthesiology with a subspecialty in interventional pain management. Claimant began treating with this Philadelphiabased doctor in 2003, about a month after the first proceedings were initiated. Claimant s doctor testified Claimant suffers significant symptomatology from the 1999 work injury, including back and neck pain. Her diagnosis is lumbar radiculopathy in the right L5 nerve root; mechanical low back symptomatology 4

5 with lumber facet arthropathy, disc herniation in the cervical spine with radicular symptomatology in the right C6 nerve distribution, cervical myofascial pain with paravertebral spasm, and sacroiliac arthropathy on the left side. Claimant s doctor opined Claimant s physical condition precludes him from performing any of the three positions that vocational expert located. Claimant also testified. He related the mechanism of his work injury and the nature of his injuries. Claimant has not returned to work since the date of injury, and he denied ability to perform the three positions identified in the current earning power assessment due to back pain and the side effects of medication. Claimant admitted he drives himself to see his doctor in Philadelphia every 60 days to receive shots for pain. A round trip from Lackawanna County takes approximately 4 hours. After the close of evidence, Second WCJ granted Employer s request to reopen the record for additional fact testimony. At a subsequent hearing, Employer presented the testimony of Lawrence Ogonosky, and Claimant s cousins, George R. Aston and Ronald Aston. The fact witnesses offered testimony contradicting Claimant s assertions he cannot engage in any activities. Collectively, the witnesses testified they observed Claimant chase horses off his property, pull a fender off a junked car, drag two deer from the woods, carry and remove a tree stand, carry wood from the tree stand, hunt, fish, and pick up a pool wall. These activities occurred in or after

6 In rebuttal, Claimant denied he engaged in any of the above activities. Claimant also testified he must have a hunting license to accompany his son in the woods during hunting season. Claimant s son confirmed his father s testimony. Second WCJ found Employer s witnesses credible. Relative to Claimant s physical condition, Second WCJ accepted as credible, persuasive and convincing the testimony and opinion of [Employer s physician] to the extent that [Claimant] has not fully recovered from the injuries related by [First WCJ] in his decision circulated July 23, 2004, of cervical and lumbar disc herniations. The issue presented to this WCJ is whether [Claimant] has recovered sufficiently from those work injuries to be able to engage in employment as set forth by the vocational expert. The testimony and opinion of [Claimant s doctor] cannot be accepted as credible, persuasive nor convincing that [C]laimant was physically unable to perform the job positions referred by [vocational expert]. On the contrary, this WCJ finds that [Claimant] is able to drive on a frequent basis from his home to see [his doctor] in a single day trip, four to five hours of driving and is not totally disabled from performing a sedentary [to] light duty position. To that extent, the testimony of [Claimant s doctor] will be specifically rejected as this WCJ does not find this [C]laimant to be totally disabled from performing all occupations, including the positions referred to by [Employer s vocational expert]. Second WCJ Op., 7/30/07, at 19 (emphasis added). Second WCJ further found the positions located by vocational expert were occupationally appropriate. Accordingly, Second WCJ granted Employer s modification petition and reduced Claimant s disability benefits. Second WCJ also determined Employer s contest 6

7 was reasonable and denied Claimant litigation expenses. On cross-appeals, the Workers Compensation Appeal Board (Board) affirmed. 1 II. Contentions On appeal, 2 Claimant asserts Employer failed to show a change of physical condition since the last disability determination as required by Lewis v. Workers Compensation Appeal Board (Giles & Ransome, Inc.), 591 Pa. 490, 919 A.2d 922 (2007). As further basis for relief, Claimant asserts Second WCJ erred by reopening the record for additional fact testimony and failing to award litigation costs and unreasonable contest counsel fees. Employer responds its physician s testimony proved a change in Claimant s condition in accord with Lewis and the availability of suitable work. Further, Employer notes the decision to reopen the record is left to the discretion of the WCJ. Absent a showing of prejudice, Employer asserts, Claimant cannot show Second WCJ abused his discretion by reopening the record. Finally, Employer 1 Employer challenged Second WCJ s order to the extent he reduced Claimant s disability benefits based on the median income of the three positions located by its vocational expert. Employer asserted Second WCJ should have reduced Claimant s benefits based on the highest potential income of the three positions. The Workers Compensation Appeal Board (Board) rejected Employer s argument, recognizing the lack of authority requiring a WCJ to accept the highest possible earning power identified in a vocational expert s report. Employer did not appeal. 2 Our review is limited to determining whether the WCJ s findings of fact were supported by substantial evidence, whether an error of law was committed, or whether constitutional rights were violated. Prebish v. Workers Comp. Appeal Bd. (DPW/Western Ctr.), 954 A.2d 677 (Pa. Cmwlth. 2008). 7

8 denies Claimant is entitled to litigation costs and counsel fees because he did not prevail before Second WCJ. III. Analysis A. The Workers Compensation Act (Act) 3 provides that a claimant s benefits may be suspended, modified or terminated based on a change in a claimant s disability: A [WCJ] designated by the department may, at any time, modify, reinstate, suspend, or terminate a notice of compensation payable, an original or supplemental agreement or an award of the department or its [WCJ] 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. Section 413 of the Act, 77 P.S. 772 (emphasis added). Claimant first contends Employer failed to prove a change in condition in accord with the Supreme Court s recent decision in Lewis. A review of Lewis is therefore appropriate. In that case, the employer issued a notice of compensation payable. The employer subsequently filed successive termination petitions, which were denied. The employer filed a fourth termination petition alleging full recovery. Its expert testified the claimant fully recovered from his work injuries consisting of an acute cervical sprain and an acute lumbosacral spine strain. He further determined that certain additional injuries, which were 3 Act of June 2, 1915, P.L. 736, as amended, 77 P.S ,

9 determined to be work-related, were not work-related. A WCJ credited the employer s medical expert and granted the termination petition. The Board and this Court affirmed. On further appeal, the Supreme Court considered whether an employer must demonstrate a change in a claimant s physical condition since the preceding disability adjudication in order to bring a petition to terminate or modify benefits due to a decrease in physical disability. Id. at 495, 919 A.2d at 925. Citing Kachinski v. Workmen s Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 252, 532 A.2d 374, 380 (1987), the Court reiterated the fourpart test to be utilized for an employer to terminate or modify benefits. The first part of the Kachinski test requires an employer seeking to modify or terminate benefits on the basis of a claimant s improved medical condition to show an actual physical improvement. Lewis. In order to meet its burden under the first prong of the Kachinski test, an employer need only adduce medical evidence that the claimant s current physical condition is different than it was at the last time of the last disability adjudication. Id. at 501, 919 A.2d 928. A change in condition is not limited merely to the claimant s diagnosis but includes any change in well being affecting a claimant s ability to work. Id. at 497, 919 A.2d at 926. Thus, if an employer produces medical evidence which focuses on a claimant s condition at a time later than the time previously adjudicated, the evidence may satisfy the employer s burden of proving a change in the claimant s physical condition. If a WCJ finds the employer s medical evidence credible, a WCJ may find the employer met the standard set forth in Lewis. However, as this 9

10 Court recently stated in Prebish v. Workers Compensation Appeal Board (DPW/Western Center), 954 A.2d 677 (Pa. Cmwlth. 2008), the WCJ must make that factual finding. Applying these principles to the facts presented, the First WCJ received Employer s evidence concerning Claimant s condition as of September 18, F.F. No. 5; Reproduced Record (R.R.) at 5a. However, Second WCJ received and credited Employer s physician s testimony that Claimant exhibited no objective evidence of significant radiculopathy or evidence of spasm during an examination on June 10, F.F. No. 5; Dep. of Michael D. Wolk, M.D., 3/17/06, at 16-17, 21, 35. This is a change of Claimant s physical condition based on medical examination by a different physician after the time previously adjudicated. In addition, Employer s physician opined Claimant engaged in symptom magnification such that subjective complaints were out of proportion to the true objective findings. F.F. No. 5. Based on Employer s physician s credible testimony, Second WCJ concluded Claimant sufficiently recovered from his work related injuries so as to be able to return to light duty employment. Second WCJ s Op., Concl. of Law No. 2. Therefore, Employer met its burden showing a change in Claimant s physical condition to support a modification of benefits. Lewis. Claimant further alleges Employer s vocational expert s testimony was insufficient to meet its burden of showing substantial gainful employment. 10

11 The 1996 amendments to the Act 4 altered an employer s burden of proof in modification proceedings. An employer is no longer required to show proof of actual job referrals; instead, an employer must only show the claimant is capable of performing his previous work or that he can engage in any substantial gainful employment which exists in his usual employment area. Section 306(b)(2) of the Act, 77 P.S. 512(2). Claimant maintains vocational expert s testimony is insufficient to meet Employer s burden of proof for several reasons. First, Claimant argues the positions located are not substantial gainful employment as required by Section 306(b)(2) of the Act because they are entry level, minimum wage jobs. We disagree, however, that such positions do not constitute substantial gainful employment. The 1996 amendments to the Act were designed in part to reduce workers compensation costs and restore efficiency to the compensation system. Riddle v. Workers Comp. Appeal Bd. (Allegheny City Elec., Inc.), 940 A.2d 1251 (Pa. Cmwlth.), appeal granted, Pa., 958 A.2d 1040 (Pa., No. 96 WAL 2008, filed October 14, 2008). The requirement of substantial gainful employment aids this purpose by ensuring the positions located in an earnings power assessment actually exist and are open and available to the claimant. See S. Hills Health Sys. v. Workers Comp. Appeal Bd. (Kiefer), 806 A.2d 962 (Pa. Cmwlth. 2002) (Act s reference to existing jobs means not only that the job exists but it is open and available to the claimant); cf. Hendry v. Workmen s Comp. Appeal Bd. (Miller & 4 Act of June 24, 1996, P.L. 350 (Act 57). 11

12 Norford, Inc.), 577 A.2d 933 (Pa. Cmwlth. 1990) (the rationale behind Kachinski was to ensure that the job referrals were available and within the claimant s restrictions). Here, vocational expert testified the located positions, which she observed, were within Claimant s physical restrictions and had immediate availability. Claimant s suggestion that the jobs located must pay more than minimum wage is simply incorrect. So long as the jobs located in an earnings power assessment reflect the claimant s residual productive skill, education, age and work experience and are open and available to the claimant, they constitute substantial gainful employment. 77 P.S. 306(b)(2); S. Hills Health Sys. Claimant also asserts vocational expert failed to obtain detailed job analysis from the prospective employers and failed to conduct her labor market survey in good faith, relying solely on Employer s physician s report, without conducting vocational or psychological testing, and utilizing similar positions located in the prior assessment. These matters, however, go to evidentiary weight, which is within the WCJ s discretion. Marriot Corp. v. Workers Comp. Appeal Bd. (Knechtel), 837 A.2d 623, 631 n.10 (Pa. Cmwlth. 2003). B. In his second assignment of error, Claimant asserts Second WCJ erred by reopening the record beyond the time prescribed in the Board s regulations to allow Employer to present additional fact witnesses. As noted above, Employer presented Claimant s cousins and a third party, all of whom testified Claimant 12

13 engaged in activities inconsistent with his claims of total disability. Also at this time we address Claimant s allegation Second WCJ erred by excluding testimony regarding Employer s vocational expert s familiarity with social security disability proceedings. Generally, the admission of evidence is within the sound discretion of the WCJ. Coyne v. Workers Comp. Appeal Bd. (Villanova Univ.), 942 A.2d 939 (Pa. Cmwlth. 2008). Whether the WCJ should waive any of the rules contained in Chapter 131 of the Board s regulations, pertaining to special rules of administrative practice and procedure before WCJs, is a matter of discretion. Id. The test to determine whether the WCJ erred in waiving the rules is whether the WCJ abused his discretion. Sherrill v. Workmen s Comp. Appeal Bd. (Sch. Dist. of Phila.), 624 A.2d 240 (Pa. Cmwlth. 1993). In addition, workers compensation matters are governed by relaxed standards and the technical rules of evidence are not necessarily applicable. Edwards v. Workers Comp. Appeal Bd. (MPW Indus. Servs., Inc.), 858 A.2d 648 (Pa. Cmwlth. 2004). We agree with the Board s conclusion Second WCJ did not abuse his discretion by reopening the record for additional fact testimony. Employer s fact witnesses challenged Claimant s credibility he cannot engage in any activities. In addition, such testimony supports Employer s medical evidence and is relevant to the issue of Claimant s improved physical condition. Moreover, Second WCJ afforded Claimant cross-examination. Further, to temper any surprise, Second WCJ afforded an opportunity for rebuttal testimony. Absent some explanation of prejudice arising from the procedure, we discern no abuse of discretion. 13

14 Similarly, we perceive no error in Second WCJ s exclusion of testimony regarding Employer s vocational expert s knowledge of social security disability proceedings. Disability as defined by the Social Security Act, 42 U.S.C. 416(i), does not include considerations of whether the disability resulted from an injury at work. Second WCJ could properly exclude testimony regarding Claimant s burden of proof in proceedings under a different statute in order to avoid confusion. See 1 st Steps Int l Adoption, Inc. v. Dep t of Pub. Welfare, 880 A.2d 24 (Pa. Cmwlth. 2005) (tribunal may exclude irrelevant, confusing, misleading, cumulative or prejudicial evidence). 5 C. In his final assignment of error, Claimant asserts Second WCJ erred by failing to award litigation costs and unreasonable contest fees. In particular, he asserts Employer failed to offer any evidence which would entitle it to a suspension, such as evidence of suitable available jobs with wages comparable to 5 We also reject Claimant s assertions reversal is required where Second WCJ failed to make findings as to Claimant s son s credibility, Employer s failure to produce an identified fourth fact witness, and Employer s failure to produce surveillance evidence. First, the WCJ is not required to give a line-by-line analysis of each statement by each witness, explaining how a particular statement affected the ultimate decision. Acme Mkts., Inc. v. Workers Comp. Appeal Bd. (Brown), 890 A.2d 21 (Pa. Cmwlth. 2006). Rather, the WCJ is required only to make findings necessary to support his determination. Minicozzi v. Workers Comp. Appeal Bd. (Ind. Metal Plating, Inc.), 873 A.2d 25 (Pa. Cmwlth. 2005). In addition, to the extent Claimant implies Second WCJ should have made an adverse inference against Employer for failure to present evidence, the adverse inference is discretionary and it is within the province of the fact finder whether to draw it. Solomon v. Workers Comp. Appeal Bd. (City of Phila.), 821 A.2d 215 (Pa. Cmwlth. 2003) (a WCJ may draw reasonable inferences from the evidence presented; on appeal, those conclusions must be reviewed in a light most favorable to the party that prevailed below). 14

15 Claimant s pre-injury earnings. Claimant further asserts Employer failed to offer evidence of a change in his physical condition, thus, the modification petition was unreasonable. Section 440 of the Act 6 contemplates an award of costs and counsel fees to a claimant, in whose favor the matter has been finally adjudicated. Here, Employer petitioned for either a suspension or a modification based on Work Generally Available. R.R. at 10a. Claimant denied all allegations and also averred as follows: Further, Claimant is totally disabled and unable to perform any type of work. By way of further answer, there is no work generally available to Claimant. [Claimant] respectfully requests that the supersedeas that is currently being requested by [Employer] be denied since he is unable to work and perform any type of gainful employment. Certified Record (C.R.) at Item 3 (Answer to Modification or Suspension Pet.). The issues thus joined in the pleadings were: 1) whether Claimant remained totally disabled; and 2) whether there was work generally available to him. These issues were both resolved in favor of Employer. Neither issue was resolved in favor of Claimant. Costs and counsel fees are not awarded to a claimant who did not prevail before the WCJ or on appeal to this court. King v. Workers Comp. Appeal Bd. (Snyder s of Hanover), 713 A.2d 113 (Pa. Cmwlth. 1998); Saunders House v. Workmen s Comp. Appeal Bd. (Russell), 628 A.2d 488 (Pa. Cmwlth. 1993). 6 Added by the Act of February 9, 1972, P.L. 25, 77 P.S

16 Accordingly, we affirm. ROBERT SIMPSON, Judge 16

17 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Gary Litts, : Petitioner : : v. : No C.D : Workers' Compensation Appeal : Board (Rossi, T/A Rossi Construction), : Respondents : O R D E R AND NOW, this 6 th day of January, 2009, the order of the Workers Compensation Appeal Board is AFFIRMED. ROBERT SIMPSON, Judge