Opinion
No. 293 C.D. 2013
08-27-2013
Dean Bomberger, Petitioner v. Workers' Compensation Appeal Board (Lancaster Masonry, Inc.), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Dean Bomberger (Claimant) petitions for review of the January 31, 2013, order of the Workers' Compensation Appeal Board (WCAB), which affirmed the decision of a workers' compensation judge (WCJ) denying and dismissing Claimant's petition to reinstate compensation benefits (reinstatement petition) and his petition to review compensation benefits (review petition) under the Workers' Compensation Act (Act). We affirm.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
On June 3, 2008, Claimant injured his back while working for Lancaster Masonry, Inc. (Employer) when an 80-pound stone block fell from a forklift and landed on him. On July 1, 2008, Employer issued a notice of compensation payable (NCP) acknowledging the work-related injury as an L1-L2 vertebrae fracture. (WCJ's Decision, 12/28/11, Findings of Fact, Nos. 2, 3, 6a.)
On November 10, 2008, Employer filed a petition to terminate or suspend benefits (termination petition). On April 14, 2009, a WCJ granted the termination petition, finding that Claimant had fully recovered as of October 16, 2008. Claimant did not attend the scheduled hearings on the matter because he was incarcerated from October 30, 2008, through September 20, 2010. (Id., Nos. 5, 6c, 6d.)
On February 14, 2011, Claimant filed a reinstatement petition alleging a worsening of his condition. On July 19, 2011, Claimant filed a review petition alleging that the description of his work-related injury should be amended. The WCJ consolidated the two petitions. (Id., No. 1.)
Claimant alleges that the work-related injuries should be amended to include "traumatic lumbar sprain syndrome superimposed upon traumatic aggravation of L4-5 discogenic disease w/L4-5 disc herniation, left sided annular tears @ L3-4 & right-sided annular tears @ L4-5, bilateral radiculopathy & aggravation of spinal stenosis." (WCJ's Decision, 12/28/11, Findings of Fact, No. 1.)
At hearings on May 4, 2011, and October 17, 2011, Claimant testified before the WCJ. Claimant stated that after the June 3, 2008, work-related injury, he sought medical treatment, including medication and physical therapy. While incarcerated, Claimant's back condition worsened. Although Claimant knew of the termination petition, he could not appear to defend himself because he was incarcerated. After leaving prison, Claimant began treatment with Lewis S. Sharps, M.D., and a chiropractor. However, treatment has not been helpful, and Claimant remains in constant pain all day long. (Id., Nos. 6, 6a, 6b, 6c, 6d, 6e, 6g.)
Claimant presented the deposition testimony of Dr. Sharps, who began treating Claimant on October 25, 2010. Dr. Sharps opined that Claimant had a "traumatic aggravation of his underlying L4-5 discogenic disease with an associated central-contained disc herniation at the L4-5 level with a superimposed traumatic lumbar strain syndrome as well as an aggravation of his L3-4 and L4-5 mild spinal stenosis." Dr. Sharps further opined that the June 3, 2008, accident caused these additional injuries and that Claimant had never fully recovered. (Id., Nos. 7a, 7f, 7i.)
Employer introduced the deposition testimony of Menachem Meller, M.D., who examined Claimant on October 16, 2008, and June 20, 2011. Dr. Meller noted that Claimant sustained fractures to his vertebrae. By the time of the examination, however, those injuries had fully healed. Thus, Dr. Meller opined that the work-related injury was fully and completely resolved without any residuals. (Id., Nos. 8a, 8b, 8e, 8g.)
On December 28, 2011, the WCJ denied and dismissed Claimant's petitions. The WCJ credited Claimant's testimony regarding: the work incident of June 2008, Claimant's incarceration, and his awareness of the termination petition while in prison. The WCJ discredited Claimant's testimony that his condition had gotten worse or changed in any material respect after the termination petition. Moreover, the WCJ found Dr. Sharps' testimony to be less credible and persuasive than Dr. Meller's and legally insufficient to support the reinstatement of benefits because he did not recognize the judicial determination that Claimant had fully recovered from the work-related injury. Conversely, the WCJ found Dr. Meller's testimony and opinions to be competent, credible, and persuasive. (Id., Nos. 9a, 9b, 9c.)
The WCJ found that Claimant had not met his burden of proof in either the reinstatement petition or the review petition. Thus, the WCJ denied and dismissed both petitions. (WCJ's Decision, 12/28/11, Conclusions of Law, Nos. 3, 4; WCJ's Order.)
Claimant appealed the WCJ's decision to the WCAB. On January 31, 2013, in a thorough and well-reasoned opinion, the WCAB affirmed the WCJ's decision. Claimant now petitions this court for review.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, and whether necessary factual findings are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
Claimant argues that the WCJ erred by placing the burden of proof on him in the reinstatement petition. We disagree.
Section 413 of the Act, 77 P.S. §772, provides for reinstatement of benefits when compensation benefits have been terminated. "A claimant seeking reinstatement of benefits following a termination carries a heavy burden because the claimant has been adjudicated to be fully recovered." National Fiberstock Corporation (Greater New York Mutual Insurance Company) v. Workers' Compensation Appeal Board (Grahl), 955 A.2d 1057, 1062 (Pa. Cmwlth. 2008). "[T]he claimant must prove that [his] disability has increased or recurred since the prior decision and that [his] physical condition has changed in some manner." Taylor v. Workers' Compensation Appeal Board (Servistar Corporation), 883 A.2d 710, 713 (Pa. Cmwlth. 2005). "The claimant must prove a change in his physical condition by 'precise and credible evidence of a more definite and specific nature than that upon which initial compensation was based' and the change must be shown to have occurred after the date of the claimant's total physical recovery." Namani v. Workers' Compensation Appeal Board (A. Duie Pyle), 32 A.3d 850, 854 (Pa. Cmwlth. 2011), appeal denied, ___ Pa. ___, 47 A.3d 849 (2012) (citations omitted).
"A [WCJ] . . . may, at any time, modify, reinstate, suspend, or terminate a [NCP] . . . 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 . . . ." 77 P.S. §772.
This requirement prevents a claimant from repeatedly attacking a decision by filing endless reinstatement petitions using the same evidence. National Fiberstock Corporation (Greater New York Mutual Insurance Company) v. Workers' Compensation Appeal Board (Grahl), 955 A.2d 1057, 1062 n.4 (Pa. Cmwlth. 2008).
Claimant argues that the termination petition should not have been afforded its full weight because Claimant could not effectively contest it due to his incarceration. However, incarceration alone does not constitute an adequate excuse for failing to appear, either in person or through counsel. See, e.g., DeMarco v. Workmen's Compensation Appeal Board (Matlack, Inc.), 515 A.2d 629, 631 (Pa. Cmwlth. 1986). Thus, Claimant had to prove through precise and credible evidence that his condition had increased or recurred subsequent to the termination petition. See Simeone v. Workmen's Compensation Appeal Board (United Parcel Service), 580 A.2d 926, 928 n.5 (Pa. Cmwlth. 1990). The WCJ did not err in placing this burden on Claimant.
Claimant next argues that the WCJ erred by finding Dr. Sharps' opinions legally insufficient to meet his burden in the reinstatement petition. We disagree.
"Where an expert's opinion is based on an assumption that is contrary to the established facts of record, that opinion is worthless." Taylor, 883 A.2d at 713. Dr. Sharps opined that the work-related injury was ongoing since June 2008 and denied on cross-examination that Claimant had ever fully recovered. (See WCJ's Decision, 12/28/11, Findings of Fact, No. 7i.) These opinions directly contradicted the finding of fact in the termination petition that Claimant had "fully and completely healed without any residuals," (WCJ's Decision, 4/8/09, Findings of Fact, No. 8), and rendered Dr. Sharps' testimony incompetent. See Namani, 32 A.3d at 855 (holding that a medical opinion based on an assumption that is contrary to the evidence of record is incompetent). Accordingly, because Claimant did not present precise and credible evidence demonstrating that his condition had worsened, the WCJ did not err in dismissing the reinstatement petition.
Claimant also argues that the WCJ inappropriately placed the burden of proof on Claimant in dismissing the review petition. We disagree.
Section 413 of the Act states that "[a WCJ] may, at any time, review and modify or set aside a [NCP] . . . if it be proved that such [NCP] . . . was in any material respect incorrect." 77 P.S. §771. --------
The party seeking to correct an NCP has the burden of proving that it was materially incorrect when it was issued. City of Pittsburgh v. Workers' Compensation Appeal Board (Wilson), 11 A.3d 1071, 1075 (Pa. Cmwlth. 2011). Here, Claimant needed to prove that the work-related injury on the NCP was wrong. The WCJ found Dr. Sharps' testimony less convincing and credible than Dr. Meller's. "[T]he WCJ's authority over issues of credibility and evidentiary weight is unquestioned." Glaze v. Workers' Compensation Appeal Board (City of Pittsburgh), 41 A.3d 190, 206 (Pa. Cmwlth. 2012). Therefore, the WCJ did not err in placing the burden of proof on Claimant and determining that Claimant failed to meet this burden.
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 27th day of August, 2013, we hereby affirm the January 31, 2013, order of the Workers' Compensation Appeal Board.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge