IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Aracelly Castro, : Petitioner : : v. : No C.D : Submitted: February 6, 2009 Workers' Compensation Appeal : Board (QVC), : Respondent : BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SIMPSON FILED: March 31, 2009 In this workers compensation appeal, Aracelly Castro (Claimant) assigns error in a Workers Compensation Judge s (WCJ) order denying her petition to review compensation in part, and her petition to reinstate workers compensation benefits. On the review petition, the WCJ expanded the accepted injury of bilateral arm strains to include bilateral carpal tunnel syndrome, but denied Claimant s request to include a cervical injury, bilateral thumb CMC joint degenerative joint disease, and bilateral shoulder injuries. On the petition to reinstate benefits, the WCJ found Claimant failed to prove she is incapable of performing her pre-injury job. In this appeal, Claimant alleges numerous errors in the WCJ s resolution of her review and reinstatement petitions. Regarding the review petition, Claimant asserts the WCJ capriciously disregarded competent evidence

2 that the notice of compensation payable (NCP) contains a material mistake and erred by failing to expand the NCP to include injuries to her shoulders. She further asserts Employer s medical expert s testimony was incompetent as a matter of law. As to her reinstatement petition, Claimant contends the record lacks competent evidence showing she could perform her pre-injury job. She also contends the WCJ erred in denying counsel fees. Discerning no merit in these assertions, we affirm. Claimant worked for QVC (Employer) in its return department. Her duties included opening boxes with a knife, removing any packing material, returning products to the boxes, and placing them on a conveyor line. She described the job as repetitive and busy. On June 22, 2005, Claimant sustained bilateral upper extremity strains while at work. Employer issued a NCP acknowledging the upper extremity injuries. By supplemental agreement, Employer suspended the payment of benefits as of July 25, 2005, the date Claimant returned to work with no loss of wages. Claimant subsequently filed a petition to reinstate benefits as of September 29, She also filed a petition to review compensation seeking to amend the NCP to include a cervical injury, bilateral carpal tunnel syndrome, bilateral thumb CMC joint degenerative joint disease and bilateral shoulder injuries. In turn, Employer filed a termination petition alleging Claimant fully recovered from the accepted work injury. 2

3 In support of her petition, Claimant explained her job duties. 1 In June 2005, Claimant experienced neck pain that traveled down her shoulders into the arms, wrists, and base of her thumbs. She initially treated with Employer s panel physicians who placed restrictions on her return to work. Upon her return to work in July 2005, Claimant performed a different job also requiring repetitive arm movement. The job caused Claimant pain. In August 2006, one of Employer s panel physicians released Claimant to work without restrictions but recommended she wear thumb braces at work and arm braces at night. Due to continued pain, Claimant s counsel referred her to Dr. Maxwell Stepanuk (Claimant s Physician). Claimant stated she is unable to perform her regular duties because of pain from the back of her head that radiates down her neck into her arms and the base of her thumbs. Claimant has not worked since September Claimant s Physician provided a detailed account of Claimant s treatments with Employer s panel physicians. The panel physicians initially restricted Claimant from strenuous, repetitive and vibratory bilateral arm movements and subsequently added restrictions on lifting. Based on examinations of Claimant and review of her medical tests, Claimant s Physician ultimately diagnosed Claimant with chronic cervical strain and sprain, bilateral carpal tunnel syndrome, chronic C6 right radiculopathy, and a disc osteophyte complex at C5-6. He opined Claimant s work activities caused her cervical strain, carpal tunnel, and chronic C6 radiculopathy and either caused or aggravated her disc osteophyte 1 Claimant testified with the assistance of a translator. 3

4 complex. Claimant s Physician would impose light duty restrictions on Claimant s return to work. In defense, Employer presented the testimony of its associate human resources manager (Manager) and Claimant s supervisor. Manager testified Employer attempts to accommodate employees with work-related injuries. In this case, Manager testified Claimant sustained a June 2005 work injury and performed modified duty upon her return to work in July. Based on an August 2006 release to regular duty work by its panel physician, Employer returned Claimant to her preinjury job without complaints. In early October 2006, Claimant s daughter presented Manager with a note from Claimant s Physician removing Claimant from work. Manager later received a list of work limitations from Physician, restricting Claimant from bilateral grasping, pushing, pulling, and fine manipulation. Employer cannot, however, accommodate restrictions placed on the use of both arms. Therefore, it did not offer Claimant modified employment based on her Physician s restrictions. Claimant s supervisor oversaw her work activities until mid-july He verified Claimant s regular job duties, indicating the return boxes weigh on average between seven and eight pounds. Following her injury, Claimant performed two different light duty jobs. The first job required Claimant to take individual retail items, such as a garment or an accessory, and move it from a bin to a waist-high sorting system. This job is repetitive, but can be done with one 4

5 hand. The second light duty job required Claimant to scan UPC labels. This job can also be performed with one hand. 2 Employer also presented the deposition of Dr. David Kuntz, Jr. (Employer s medical expert), the last panel physician to treat Claimant. Employer s medical expert first examined Claimant in July 2006 upon referral from other physicians within the panel group. Claimant s clinical examination revealed positive bilateral Tinel s sign and Phalen s sign over the median nerves. She complained of tenderness along the neck muscles, but exhibited a full range of motion in the shoulders, elbows, forearms and wrists. Claimant had equal grip strength bilaterally and showed no muscle atrophy. MRIs of the cervical spine showed mild degenerative disease. Nothing in the MRIs suggested Claimant s work activities caused her cervical pain. At this visit, Employer s medical expert continued the work restrictions previously imposed by the other panel physicians. Employer s medical expert conducted a second examination of Claimant on August 9, He opined Claimant was improving but still had positive Tinel s and Phalen s signs over the median nerves. Testing showed evidence of arthritis at the base of the thumbs. Employer s medical expert diagnosed bilateral arm pain, neck and shoulder pain, bilateral carpal tunnel 2 In rebuttal, Claimant presented the testimony of her daughter. Daughter previously worked for Employer and described the jobs Claimant performed. She further testified all the positions Claimant worked are repetitive because they require constant use of the hands. The WCJ credited Daughter s testimony that Claimant continues to have some upper extremity pain since the work injury. However, noting Daughter s more direct interest in the outcome of the litigation, he rejected Daughter s testimony where it conflicted with that of Manager and Claimant s supervisor. 5

6 syndrome, and bilateral thumb CMC joint degenerative joint disease. The expert stated Claimant s bilateral thumb CMC joint degenerative joint disease is related to her age and gender, and the mild cervical changes are also age-related. After examination, Employer s medical expert released Claimant to her pre-injury job without restrictions with instructions to wear the thumb braces as need for her arthritis. 3 Based on Employer s medical expert s credible testimony, the WCJ found Claimant suffers from bilateral arm, shoulder and neck pain, bilateral carpal tunnel syndrome, and bilateral thumb CMC joint degenerative joint disease. However, Claimant s cervical pain and bilateral thumb CMC joint pain are not work-related. Based upon these findings, the WCJ expanded the NCP to include bilateral carpal tunnel syndrome. The WCJ further found Claimant s work injuries are not disabling. The WCJ credited Claimant s Physician s opinion to the extent it was not inconsistent with Employer s medical expert s opinion. Accordingly, the WCJ granted Claimant s review petition in part, expanding the NCP to include carpal tunnel syndrome, and ordered payment of all 3 In support of its termination petition, Employer presented the testimony of Dr. David C. Baker, who conducted an independent medical examination of Claimant in July With the exception of signs of early carpal tunnel syndrome, Dr. Baker found no evidence of structural dysfunction in Claimant s joints, muscles, or nerves. Dr. Baker did not attribute Claimant s carpal tunnel to her work activities because her job did not involve force. Notably, Claimant complained to the doctor that her pain increased after she stopped working. Dr. Baker diagnosed Claimant with widespread pain syndrome unrelated to her work activities. He saw no evidence of a sprain or strain of the bilateral upper extremities and opined Claimant fully recovered from the accepted work injury. The WCJ rejected Dr. Baker s opinion of full recovery. He noted the doctor s diagnosis of widespread pain syndrome focused primarily on the upper extremities, which involves the same area of the body as recognized in the NCP. Employer did not appeal. 6

7 related reasonable and necessary medical expenses. He denied Claimant s reinstatement petition on the basis Claimant s injuries did not disable her from work. He denied Claimant s request for quantum meruit counsel fees on the basis Employer presented a reasonable contest. On Claimant s appeal, the Workers Compensation Appeal Board affirmed. This appeal followed. 4 With regard to her petition for review, Claimant asserts: the WCJ capriciously disregarded competent evidence showing the NCP contains a material mistake; the WCJ erred by failing to include shoulder injuries in the expanded description of the work injury; and, Employer s medical expert s testimony was incompetent as a matter of law. As to her reinstatement petition, Claimant contends the record lacks competent evidence showing she was able to perform her pre-injury job. She further contends Employer s contest was unreasonable and, therefore, the WCJ erred by denying counsel fees. Petition for Review At the outset, we note, Section 413(a) of the Workers Compensation Act (Act) 5 permits a WCJ to modify a NCP upon petition or during the course of proceedings if it is established the NCP was materially incorrect when issued. In addition, a WCJ may modify the NCP where a claimant s added disability arises as a natural consequence of the work injury. Cf. Campbell v. Workmen s Comp. 4 We are limited to determining whether the necessary findings were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Westmoreland County v. Workers Comp. Appeal Bd. (Fuller), 942 A.2d 213 (Pa. Cmwlth. 2008). 5 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. 771,

8 Appeal Bd. (Antietam Valley Animal Hosp.), 705 A.2d 503 (Pa. Cmwlth. 1998) (work-related wound becomes infected leading to other disabilities). The party seeking to modify the NCP bears the burden of proving a material mistake of fact or law was made at the time the NCP was issued. Anderson v. Workers Comp. Appeal Bd. (Pennsylvania Hosp.), 830 A.2d 636 (Pa. Cmwlth. 2003). A NCP is materially incorrect if the accepted injury fails to include all the injuries the claimant suffered in the work incident, including injuries that cause an increase in the claimant s disability. Cinram Mfg., Inc. v. Workers Comp. Appeal Bd. (Hill), 932 A.2d 346 (Pa. Cmwlth. 2007), appeal granted, 597 Pa. 55, 950 A.2d 263 (2008). It remains the claimant s burden to prove by unequivocal medical evidence that her work activities caused the alleged new injuries. Degraw v. Workers Comp. Appeal Bd. (Redner s Warehouse Mkts., Inc.), 926 A.2d 997 (Pa. Cmwlth. 2007). 1. Summarizing, Claimant asserts the WCJ capriciously disregarded evidence (1) she experienced pain in the neck, shoulders, and thumbs as a result of her repetitive work duties; (2) Employer knew her work injuries extended beyond the upper extremities at the time it issued the NCP; (3) Employer knew of injuries flowing from Claimant s work activities and the accepted work injury and, (4) her pain continued after her July 2005 return to work. Claimant further asserts the WCJ erred by failing to expand the NCP to include shoulder injuries. A capricious disregard of evidence is a deliberate disregard of competent evidence which one of ordinary intelligence could not have possibly 8

9 avoided in reaching a particular result. Frankford Hosp. v. Workers Comp. Appeal Bd. (Walsh), 906 A.2d 651 (Pa. Cmwlth. 2006). The Supreme Court explained in Leon E. Wintermyer, Inc. v. Workers Compensation Appeal Board (Marlowe), 571 Pa. 189, 203, 812 A.2d 478, 487 (2002), that review for capricious disregard of material, competent evidence is an appropriate component of appellate consideration in every case in which such question is properly brought before the court. This review assures the agency adjudication was conducted within lawful boundaries; however, it not to be applied in such a manner that intrudes upon the agency s fact-finding role and discretionary decision-making authority. Id. We disagree with Claimant s assertions of capricious disregard for several reasons. First, the WCJ accepted Claimant s complaints of work-related upper extremities pain, but he rejected her claims of work-related cervical and thumb pain. See Finding of Fact (F.F.) Nos. 5(b); 5(f); 17. In the absence of credible, objective medical testimony, the WCJ is neither required to accept Claimant s assertions of pain nor prohibited from doing so. Udvari v. Workmen s Comp. Appeal Bd. (USAir, Inc.), 550 Pa. 319, 705 A.2d 1290 (1997); Saville v. Workers Comp. Appeal Bd. (Pathmark Stores, Inc.), 756 A.2d 1214 (Pa. Cmwlth. 2000). In addition, the WCJ may accept or reject the testimony of any witness in whole or in part. McNulty v. Workers Comp. Appeal Bd. (McNulty Tool & Die), 804 A.2d 1260 (Pa. Cmwlth. 2002). Having failed to produce credible testimony that her work activities caused injury to her neck and thumbs, Claimant failed to meet her burden to include these conditions in the identified work injury. 9

10 Second, the WCJ made specific findings regarding Claimant s additional injuries allegedly resulting or flowing from her accepted work injuries. In particular, the WCJ noted Employer s medical expert initially indicated Claimant s cervical injuries were work-related. F.F. No. 13(c). However, the expert subsequently changed his opinion based on MRIs of Claimant s cervical spine showing only degenerative changes. Id.; Dep. of David G. Kuntz, Jr., M.D., 6/25/07, at 10, 12-13, In addition, the WCJ noted all the medical experts agreed there was no clinical corroboration of Claimant s complaints of cervical radiculopathy. F.F. No. 13(c). The only evidence of cervical radiculopathy occurred after Claimant stopped working. Id. Thus, the WCJ placed greater significance on MRIs performed while Claimant was working. F.F. No. 13. The WCJ has discretion in assigning evidentiary weight. Minicozzi v. Workers Comp. Appeal Bd. (Ind. Metal Plating, Inc.), 873 A.2d 25 (Pa. Cmwlth. 2005). 2. We reject Claimant s assertions the WCJ erred by disregarding uniform medical evidence of work-related shoulder injuries. Claimant bore the burden of proving she sustained shoulder injuries as a result of her work activities. Degraw. However, Claimant s Physician s diagnosis did not include shoulder injuries. See Dep. of Maxwell Stepanuk, Jr., D.O., 4/11/07, at 50 (Claimant suffers from chronic cervical strain and sprain, a bilateral carpal tunnel syndrome, chronic C6 right radiculopathy, and disc osteophyte complex at C5-6). Therefore, Claimant s Physician s testimony does not support expansion of the NCP to include shoulder injuries even if accepted as credible. Further, Employer s medical expert offered no opinion regarding the cause of Claimant s shoulder pain. 10

11 3. In her final assignment of error in reference to the review petition, Claimant contends Employer s medical expert s testimony is incompetent because he failed to obtain Claimant s medical and occupational history. The lack of this information, Claimant argues, adversely affects the expert s opinion of whether her cervical and thumb pain are related to her work activities. Based on our thorough review of Claimant s appeal to the Board, we conclude Claimant waived the issue of whether Employer s medical expert s opinion is incompetent. See O.R. at Item 12. It is well-settled that issues not raised before the Board are deemed waived on further appeal. Mearion v. Workers Comp. Appeal Bd. (Franklin Smelting & Refining Co.), 703 A.2d 1080 (Pa. Cmwlth. 1997). 6 Reinstatement Petition Claimant also assigns error in the denial of her petition to reinstate benefits. She contends the record lacks evidence she is capable of performing her pre-injury job as of September 2006 or that Employer offered her suitable work thereafter. Claimant asserts Employer s medical expert could not render an 6 Nevertheless, we recognize the determination of whether certain medical evidence is competent is a conclusion of law reviewable on appeal. Pryor v. Workers Comp. Appeal Bd. (Colin Serv. Sys.), 923 A.2d 1197 (Pa. Cmwlth. 2006). When applied to medical evidence, competency questions whether the witness s opinion is sufficiently definite and unequivocal to render it admissible. Id. That a medical expert does not have all of the claimant s medical records goes to the weight given the expert s opinion, not its competency. Id. Thus, Claimant s assertion Employer s medical expert s testimony is incompetent lacks merit. 11

12 opinion as to her physical condition after August 2006 and, as such, her Physician s testimony that as of September 2006, her work injuries precluded her from returning to work is not inconsistent with the expert s testimony. A claimant seeking to reinstate workers compensation benefits after a suspension must prove through no fault of her own, the claimant s disability is once again adversely affected by the work injury and the disability giving rise to the original claim continues. Pan Bldg. Corp. v. Workmen s Comp. Appeal Bd. (Thompson), 698 A.2d 697 (Pa. Cmwlth. 1997). In such cases, the causal connection between the original work injury and the disability is presumed. Pieper v. Ametek-Thermox Instruments, Div., 526 Pa. 25, 584 A.2d 301 (1990). The term disability is synonymous with loss of earning power. Kmart v. Workers Comp. Appeal Bd. (Williams), 771 A.2d 82 (Pa. Cmwlth. 2001). We need not address Claimant s initial assertion that Employer did not offer suitable work within her medical restrictions for several reasons. First, Claimant s failure to raise this issue before the Board results in waiver. Mearion. Second, Claimant returned to full duty work in August 2006 and thus had the burden of proving her work injuries once again affected her earning power. Pan Bldg. Corp. However, the WCJ accepted Employer s medical expert s testimony Claimant can work without restrictions as of August F.F. No. 15. Also, the WCJ rejected Claimant s testimony about her ability to do her job because she did not provide full effort during some of the testing. F.F. No

13 Furthermore, Claimant s argument amounts to a challenge of the WCJ s credibility determinations. The WCJ found the work injuries include bilateral arm strain and bilateral carpal tunnel syndrome. F.F. No. 14. Based on the credible testimony of Employer s medical expert, the WCJ concluded Claimant s work injuries did not disable her from performing her pre-injury duties. F.F. No. 15. Witness credibility is solely within the preview of the WCJ as fact finder and unless made arbitrarily or capriciously, a WCJ s credibility determinations will be upheld on appeal. Dorsey v. Workers Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191 (Pa. Cmwlth. 2006). Here, the WCJ credited Employer s medical expert s opinion over that of Claimant s Physician. The WCJ found it important that Employer s medical expert examined Claimant in the course of treatment and not for litigation purposes. F.F. No. 12. In addition, Employer s medical expert testifies six to eight times per year. By contrast, Claimant s Physician s practice involves 70% legal work, 25% of which is solicited by Claimant s counsel s firm. Id. Also, Claimant s Physician admitted that approximately 60% of his deposition testimony is for Claimant s counsel s firm. Id. As the prevailing party, Employer is entitled to the reasonable inference the WCJ found these factors indicative of a bias in favor of Claimant s counsel s clients. WAWA v. Workers Comp. Appeal Bd. (Seltzer), 951 A.2d 405 (Pa. Cmwlth. 2008). The WCJ also found it significant Claimant s condition remained the same or deteriorated since leaving the workplace. F.F. No. 14. The WCJ opined that if Claimant s work injury caused the loss of earning power, her condition 13

14 should not have continued to deteriorate after she stopped working. For these reasons, we cannot conclude the WCJ rendered arbitrary and capricious credibility determinations. As a result, the record supports the WCJ s denial of Claimant s reinstatement petition. Unreasonable Contest Counsel Fees In her final assignment of error, Claimant contends the WCJ erred by concluding Employer s contest of the review and reinstatement petitions was reasonable. She contends Employer s medical expert did not opine until his June 2007 deposition testimony that her cervical and thumb conditions were degenerative in nature, and its independent medical examiner (IME) did not conduct his examination until July Therefore, Claimant asserts entitlement to unreasonable contest fees from the filing of her petitions until the date of Employer s IME s testimony. Section 440 of the Act 7 contemplates an award of counsel fees to a claimant, in whose favor the matter has been finally adjudicated, unless the record shows the employer engaged in a reasonable contest. Hansen v. Workers Comp. Appeal Bd. (Stout Road Assocs.), 957 A.2d 372 (Pa. Cmwlth. 2008). The employer bears the burden of proving reasonable contest, and the question of whether a reasonable basis exists to contest liability depends on both the facts and legal issues involved. Id. A reasonable basis exists when medical evidence is conflicting or susceptible to contrary inferences, and there is an absence of 7 Added by the Act of February 9, 1972, P.L. 25, 77 P.S

15 evidence showing the employer s contest is frivolous or filed to harass a claimant. Id. We agree with the WCJ s conclusion Employer had a reasonable basis to contest Claimant s petitions. Prior to her first visit with Employer s medical expert in July 2006, Claimant underwent two cervical MRIs showing only degenerative changes. F.F. No. 10(f). A third MRI, conducted four months after Claimant left work, showed degeneration, osteophytic ridging, and a disc protrusion. All conditions are consistent with her age. Dep. of Dr. Stepanuk, at 60. Thus, the medical records available to Employer at the time Claimant initiated her petitions provided Employer with a factual basis to contest liability for the alleged additional work injuries. Therefore, we conclude the record as a whole supports the WCJ s determination Employer s contest was reasonable. Accordingly, we affirm. ROBERT SIMPSON, Judge 15

16 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Aracelly Castro, : Petitioner : : v. : No C.D : Workers' Compensation Appeal : Board (QVC), : Respondent : O R D E R AND NOW, this 31 st day of March, 2009, the order of the Workers Compensation Appeal Board is AFFIRMED. ROBERT SIMPSON, Judge