IN THE COMMONWEALTH COURT OF PENNSYLVANIA Gloria Barile, : Petitioner : v. : : Workers Compensation Appeal : Board (Target Corporation and : Sedgwick CMS), : No. 493 C.D. 2014 Respondents : Submitted: October 24, 2014 BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI FILED: November 17, 2014 Gloria Barile (Claimant) petitions for review of the order of the Workers Compensation Appeal Board (Board) affirming the decision of the Workers Compensation Judge (WCJ) which granted in part Claimant s petition to review compensation benefits (review petition) and granted the petition to terminate compensation benefits (termination petition) filed by Target Corporation (Employer). For the following reasons, we reverse the Board s decision regarding Employer s termination petition and remand for further proceedings.
I. On July 26, 2010, while working as a stock clerk, Claimant sustained a work injury when a wooden pallet struck her left knee. Employer acknowledged Claimant s injury by issuing a notice of compensation payable describing the injury as a left-knee contusion. Claimant then had magnetic resonance imaging (MRI) studies at Temple University Hospital and received treatment from Easwaran Balasubramanian, M.D. (Dr. Balasubramanian). On September 22, 2010, Dr. Balasubramanian performed an arthroscopy on Claimant s left knee with a partial medial meniscectomy. 1 Dr. Balasubramanian s operative report described his pre- and post-operative diagnoses as [l]eft knee medial meniscus tear. (R.R. at 107a.) Following Claimant s surgery, she underwent physical therapy and injections. She attempted to return to work in February 2011, but because she was unable to perform her job duties, total benefits were reinstated as of March 1, 2011. Following an independent medical examination (IME) performed at Employer s request, Employer issued a notice of ability to return to work dated July 18, 2011. On August 18, 2011, Employer filed a termination petition alleging that Claimant had fully recovered from her work injury as of August 16, 2011, the date of the 1 Dr. Balasubramanian s operative report explained that during the procedure, he observed some degenerative tearing in the medial meniscus of Claimant s left knee, excised the torn portion, and debrided the remaining meniscus. He also noted mild degenerative in the patellofemoral joint but no significant signs of tearing in the lateral meniscus. (Reproduced Record [R.R.] at 107a.) 2
IME. 2 Subsequently, on January 3, 2012, Claimant filed a review petition seeking to amend the description of her work injury to encompass a medial meniscus tear to her left knee. At consolidated hearings before the WCJ, Employer submitted the trial deposition of Stuart L. Gordon, M.D. (Dr. Gordon), a board-certified orthopedic surgeon who specializes in hips and knees. Dr. Gordon testified that during his IME of Claimant on July 6, 2011, he collected her history and reviewed her medical records. He testified that a comparison of Claimant s pre- and postoperative MRI studies revealed that Claimant had arthritis in both knees, in the medial sides of both joints, and in both patellofemoral joints, with greater arthritis in the right (unaffected) side. He further noted a degenerative-type tear in the medial meniscus of Claimant s left knee with arthritic changes in the medial joint space. He specifically denied that the tear was work-related, stating: Q. Doctor, we went through prior, discussing the tear for which the Claimant had surgery for. Is that tear work-related? A. It is not. That is a degenerative-type tear based upon the pre-operative MRI study, based upon the mechanism of injury, and based upon Dr. Bala[subramanian] s operative findings. 2 Employer also filed a petition to modify or suspend benefits based upon a specific job offered to Claimant. Because the WCJ granted the termination petition, the other filings were dismissed as moot without consideration. 3
(R.R. at 66a 67a.) Regarding the operative report, Dr. Gordon emphasized that on the day of surgery, Dr. Balasubramanian found degenerative changes in Claimant s left medial compartment and underneath her left kneecap, but did not identify any tears in the lateral side of the joint consistent with Dr. Gordon s observations on the pre-operative MRI study. However, Dr. Gordon disagreed with the postoperative report which indicated that the same tear remained. During Dr. Gordon s physical examination, Claimant reported soreness and tenderness in her left knee, but Dr. Gordon observed a full range of motion in both knees without the presence of any joint swelling or effusion. Based on his review of Claimant s medical records, history and physical examination, Dr. Gordon opined that Claimant sustained a contusion to the left knee from which she had fully recovered as of the date of her IME. (R.R. at 65a.) He further explained that the tear for which Claimant underwent surgery was not work-related but rather was a degenerative-type tear based upon the preoperative MRI study, the mechanism of injury, and Dr. Balasubramanian s operative findings. Dr. Gordon further concluded that: [Claimant s] prognosis is really based upon her underlying arthritic process of her knee joint. The patient is overweight. She has arthritis in both knees. Actually, the right knee is worst [sic] tha[n] the left in terms of the arthritic process. But certainly, I felt that she was back to her baseline level in terms of an objective basis. I feel that 4
she could return to her job as a stock clerk for [Employer] without restrictions. That is the [sic] why I signed an Affidavit for Recovery. (R.R. at 66a.) In support of Claimant s review petition and in opposition to Employer s termination petition, Claimant submitted the trial deposition of Mark D. Avart, D.O. (Dr. Avart), a board-certified orthopedic surgeon who examined Claimant on March 26, 2012. Based on his review of Claimant s medical records, history and physical examination, Dr. Avart concluded that as a result of her work injury, Claimant sustained a torn medial meniscus and an aggravation and exacerbation of pre-existing degenerative joint disease in her left knee. He further testified that his diagnosis was consistent with Dr. Balasubramanian s pre- and post-operative diagnosis of left knee medial meniscal tear and the finding that Claimant s left lateral meniscus was intact, explaining that if the injury were due to chronic arthritis, Claimant s symptoms would not be limited to her left medial knee but would accompany the arthritis on both sides of her knee. Based upon his examination, he found that Claimant was incapable of performing her job duties because [t]he standing, walking and lifting that s required as part of the normal job she can t do. (R.R. at 96a.) He explained that Claimant would require additional surgery and may ultimately be able to perform lighter tasks but could not return as a stock person. Additionally, Claimant testified that she was 64 years old and that she occupied the position of stock clerk for approximately three years. She stated that 5
prior to her work injury, she had no complaints of pain or history of treatment regarding her left knee. She explained that because the condition of her left knee did not improve after her surgery, Dr. Balasubramanian referred her to physical therapy which was also unproductive. She explained that in approximately February or March of 2011, she attempted to return to light-duty work but was placed in her pre-injury position and could not perform those duties because she was unable to stand due to swelling and pain in her knee. II. Following the hearings, the WCJ granted Claimant s review petition in part, concluding that Claimant satisfied her burden of proving that the description of her injury should be expanded to include aggravation of her preexisting left-knee generative joint disease and medial meniscus tear. However, the WCJ also granted Employer s termination petition, crediting Dr. Gordon s testimony that Claimant was back to her baseline condition as of July 6, 2011, and, therefore, finding that Claimant was fully recovered from her work injury as of July 6, 2011. (R.R. at 137a 138a.) Claimant appealed to the Board, asserting that the WCJ erred in determining that Claimant had fully recovered from her work injury when Dr. Gordon did not find that Claimant s work injury included a medial meniscus tear. 3 The Board affirmed the WCJ s decision, finding that: 3 Claimant also contended that the WCJ erred in giving more credence to Dr. Gordon s opinion than that of Dr. Balasubramanian, Claimant s treating physician. However, this issue is not currently before us. 6
Although Dr. Gordon did not specifically opine that Claimant s pre-existing left knee symptoms and medial meniscus tear were aggravated by the work injury, he clearly opined that as of the date of his examination of Claimant, she had returned to baseline and thus, was fully recovered and could return to her pre-injury position with [Employer]. The [WCJ] accepted Dr. Gordon s testimony over Dr. Avart in that regard, satisfying Defendant s burden under Udvari [v. Workers Compensation Appeal Board (USAir, Inc.), 705 A.2d 1290 (Pa. 1997)]. (R.R. at 153a.) The Board further noted that Dr. Gordon s deposition was taken on December 29, 2011, but Claimant s review petition was not filed until January 3, 2012, after which Dr. Avart s deposition was taken. The Board held that [a]lthough [Employer] could have taken an additional deposition of Dr. Gordon, we believe that his testimony was sufficient to establish that Claimant was fully recovered from all her work injuries, which would include an aggravation of a preexisting torn medial meniscus, as of the time of his examination. (Id. n.2.) This appeal followed. III. On appeal, 4 Claimant contends that the Board erred in affirming the grant of Employer s termination petition when no competent medical evidence established that Claimant was fully recovered from each of her work injuries. 4 We review Board decisions to determine whether errors of law were made, constitutional rights were violated, and whether necessary findings of fact are supported by substantial evidence. Ward v. Workers Compensation Appeal Board (City of Philadelphia), 966 A.2d 1159, 1162 n.4 (Pa. Cmwlth.), appeal denied, 982 A.2d 1229 (Pa. 2009). 7
Claimant asserts that although Dr. Gordon testified that Claimant had fully recovered from her left-knee contusion, he did not acknowledge each and every one of Claimant s judicially recognized injuries and specifically denied that Claimant sustained a work-related aggravation of her pre-existing left-knee generative joint disease and medial meniscus tear. Generally a medical expert s opinion will not support a termination if that medical expert does not acknowledge the accepted work injuries and does not opine full recovery from those injuries since an employer may not relitigate the nature of the accepted work injury in a termination petition. Hall v. Workers Compensation Appeal Board (America Service Group), 3 A.3d 734, 740 (Pa. Cmwlth. 2010). However, even though a physician does not believe that the injury occurred or that it was work-related, if he assumes that the injury exists for purposes of the termination petition and opines that the claimant has fully recovered from that injury, such testimony will support a finding of full recovery. See To v. Workers Compensation Appeal Board (Insaco, Inc.), 819 A.2d 1222, 1225 (Pa. Cmwlth. 2003). While acknowledging that Dr. Gordon did not find the aggravation of Claimant s meniscal tear work-related, 5 Employer contends that Dr. Gordon s testimony is competent pursuant to To, and opined that Claimant had recovered from all work-related injuries when he stated that she returned to her baseline. In 5 Dr. Gordon s failure in this regard is not surprising as he provided his testimony five days before Claimant filed her review petition. 8
To, we held that a physician need not agree with the accepted definition of a work injury to provide competent testimony that a claimant s disability had ceased. Id. at 1225. However, we went on to state that when a medical expert fails to recognize that a claimant sustained an accepted work injury, it [is] impossible for the medical expert to give an opinion that the claimant ha[s] fully recovered from that injury. Id. In this case, Dr. Gordon never acknowledged that Claimant recovered from aggravation of her meniscal tear, which is not surprising since he testified five days before Claimant filed her review petition. As to Employer s argument that Dr. Gordon s testimony was legally sufficient because he testified that Claimant returned to her baseline, we addressed a similar issue in Gillyard v. Workers Compensation Appeal Board (Pennsylvania Liquor Control Board), 865 A.2d 991, 993 (Pa. Cmwlth.), appeal denied, 882 A.2d 1007 (Pa. 2005). In that case, the employer s expert testified that the claimant had recovered from his work injury, which he described as lumbar strain or sprain, because a physical examination revealed that claimant s back was normal. Noting that the claimant s work injury was defined as chronic sciatica at the L5-S1 distribution on the right side with disc bulging at L4-5 and L5-S1 area, we found the employer s evidence legally insufficient because it recognized only an element rather than all of the established work injury and failed to establish that the claimant recovered from the remaining injury. Id. at 996. Similarly, to the medical expert s declaration that the claimant s back condition returned to normal in Gillyard, here, Dr. Gordon opined that Claimant returned to her baseline 9
condition which is legally insufficient because we do not know what the baseline is without Dr. Gordon s acknowledgment of all of Claimant s work injuries. 6 Accordingly, we reverse the Board s decision regarding Employer s termination petition and remand this matter to the Board with instruction to remand to the WCJ for resolution of Employer s suspension and modification petitions. (See note 2.) 7 DAN PELLEGRINI, President Judge 6 Finally, Employer argues that in Dr. Gordon s affidavit of recovery, he listed Claimant s established work injury, and, therefore, acknowledged it for purposes of Employer s termination petition. While the affidavit lists Claimant s left-knee contusion as an injury, this Court is unable to discern the remainder of Dr. Gordon s note, and the WCJ made no findings of fact with regard to the affidavit. 7 We do not disturb the WCJ s grant of Claimant s review petition and, thus, our reversal of the Board is so limited. 10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Gloria Barile, : Petitioner : : v. : : Workers Compensation Appeal : Board (Target Corporation and : Sedgwick CMS), : Respondents : No. 493 C.D. 2014 O R D E R AND NOW, this 17 th day of November, 2014, the order of the Workers Compensation Appeal Board dated February 25, 2014, in the abovecaptioned case is reversed insofar as it granted Target Corporation and Sedgwick CMS termination petition, and this matter is remanded to the Workers Compensation Appeal Board with instruction to remand to the Workers Compensation Judge for further proceedings consistent with this opinion. Jurisdiction relinquished. DAN PELLEGRINI, President Judge