Opinion
No. 199 C.D. 2012
07-13-2012
John Centano, Petitioner v. Workers' Compensation Appeal Board (Lowes Home Centers, Inc.), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
John Centano (Claimant) appeals from an order of the Workers' Compensation Appeal Board (Board) affirming the decision of the Workers' Compensation Judge (WCJ) denying his Petition to Review Compensation Benefits (Review Petition). Finding no error by the Board, we affirm.
Claimant began working for Lowes Home Centers, Inc. (Employer) in 2006 as a department manager. On October 13, 2008, Claimant was injured while working for Employer when he stepped off of a piece of power equipment onto a pallet and his left foot went through the slats of the pallet, causing his left knee to hyperextend. Employer issued a "medical only" Notice of Temporary Compensation Payable describing the injury as a left knee sprain. Claimant underwent arthroscopic surgery on his left knee on March 26, 2009, and Employer subsequently issued a Notice of Compensation Payable (NCP) describing the injury as "left knee sprain, arthroscopy [sic] surgery," and providing for workers' compensation benefits.
On April 29, 2009, Claimant returned to work with no loss of earnings, and his benefits were suspended pursuant to a Supplemental Agreement. On December 1, 2009, Employer filed a Petition to Terminate Compensation Benefits (Termination Petition) alleging that Claimant had fully recovered from his work injury as of October 30, 2009. On March 15, 2010, Claimant filed a Review Petition seeking to amend the description of the injury on the NCP to include "internal derangement and medial meniscus tear." The petitions were consolidated for hearing.
Section 413(a) of the Pennsylvania Workers' Compensation Act (Act), Act of June 15, 1915, P.L. 736, as amended, 77 P.S. §771, provides that "a workers' compensation judge may, at any time, review and modify or set aside a notice of compensation payable...if it be proved that such notice of compensation payable or agreement was in any material respect incorrect." The burden rests on the party seeking modification of a Notice of Compensation Payable to prove that a material mistake of law or fact was made at the time it was issued. Waugh v. Workers' Compensation Appeal Board, 558 Pa. 400, 405, 737 A.2d 733, 736 (1999). A notice of compensation payable is materially incorrect if the accepted injury does not reflect all of the injuries sustained in the initial work incident. City of Harrisburg v. Workers' Compensation Appeal Board, 877 A.2d 555, 559 (Pa. Cmwlth. 2005).
Before the WCJ, Claimant testified that he did not have any significant pain or difficulty with his left knee at any time prior to October 13, 2008, but did admit that he suffered a minor knee strain while playing football in October 2007. He testified that he first received treatment for his work injury at the hospital, which then referred him to Dr. Guastavino. After initially undergoing physical therapy, Claimant continued to feel pain in his knee, and Dr. Guastavino performed arthroscopic surgery to repair the knee on March 26, 2009. Claimant stated that the pain in his knee worsened after the surgery. Although Claimant did not believe he was physically ready to return to work on April 29, 2009, he did so because Employer had informed him that it would replace him if he did not return within a few months of the surgery. Claimant testified that his position with Employer required him to walk around the store and lift heavy freight, and that he had been unable to perform his job in the same manner as he did prior to October 13, 2008, because of the continuing pain and discomfort in his knee.
Claimant also submitted the deposition testimony of Robert W. Mauthe, M.D. (Dr. Mauthe), a physician board-certified in physical medicine and rehabilitation, electrodiagnostic medicine and the subspecialty of pain medicine. Dr. Mauthe testified that he examined Claimant on January 4, 2010, at which time Claimant advised him that he suffered a twisting injury to his knee while at work on October 13, 2008. Dr. Mauthe described a series of tests he performed on Claimant during the examination, including the Thesally maneuver, which he stated was diagnostic of meniscal pathology. He explained that, in response to that test, Claimant "had the classic pain over the medial joint line when he squatted and twisted." (April 15, 2010 Deposition of Dr. Mauthe at 10). He also testified that he reviewed an MRI of Claimant's knee taken sometime between October 13, 2009, and October 31, 2009, which revealed an abnormal medial meniscus. Based on his examination and review of the MRI, Dr. Mauthe testified that he diagnosed Claimant with a left medial meniscal tear, and opined that it was a direct result of the work injury Claimant sustained on October 13, 2008. He further testified that Claimant was not fully recovered from the injury as of the date of the examination, and that he continued to have functional impairment which would cause him difficulty standing, walking up or down stairs, squatting and bending.
Dr. Mauthe testified that he subsequently reviewed Claimant's initial medical records, including the operative note from Dr. Guastavino, and that these records did not change his opinion that Claimant was suffering from a medial meniscal tear on the date of his January 4, 2010 examination. However, he acknowledged that Dr. Guastavino's operative note made no reference to a meniscal tear.
Dr. Mauthe explained that he reached this conclusion because the onset of Claimant's knee pain was temporally associated with his employment, Claimant did not have any significant pre-existing conditions in his left knee, and the "biomechanics of the...twisting injury is classic for developing medial meniscus tear." (April 15, 2010 Deposition of Dr. Mauthe at 16).
In opposition, Employer submitted the deposition testimony of Keith E. Girton, M.D. (Dr. Girton), a board-certified orthopedic surgeon, who conducted an independent medical examination of Claimant on October 13, 2009. He stated that Claimant complained of popping and pain in his left knee during that examination. However, Dr. Girton explained that his findings on physical examination included no swelling, no fluid on the knee, no thickening of the lining of the knee joint and no easily reproducible "popping" sound on testing which would indicate a torn meniscus. He also testified that he reviewed Claimant's prior medical records, including those from Dr. Guastavino, and did not find any reference to a torn meniscus in those records. Based on his examination and review of Claimant's records, he opined that Claimant had suffered a sprain of the knee on October 13, 2008, but had fully recovered from that injury as of the date of his examination. He based his opinion of full recovery on the fact that Claimant "had no remaining pain over the medial collateral ligament, which would be the area referred to as a sprain in the knee." (March 10, 2010 Deposition of Dr. Girton at 13). He attributed the pain Claimant reported to a bone spur in the upper part of Claimant's fibula, as well as degenerative problems that were unrelated to his work injury. However, Dr. Girton testified that an MRI taken subsequent to his examination of Claimant revealed a "meniscus abnormality" in Claimant's left leg, and he also stated, "I think all indications are that right now he has a medial meniscus tear." Id. at 27.
Although the WCJ found that Claimant was suffering from a left medial meniscus tear on January 4, 2010, he denied Claimant's Review Petition because he found Dr. Girton's opinion with regard to the cause of that injury to be more credible than Dr. Mauthe's opinion. Based on that credibility determination, the WCJ found as fact that Claimant did not sustain a tear of the medial meniscus as a result of the October 13, 2008 work injury. However, the WCJ also denied Employer's Termination Petition, explaining that Employer failed to meet its burden of proving that the pain Claimant experienced was wholly unrelated to the work injury. Claimant then appealed the WCJ's denial of his Review Petition to the Board arguing that the WCJ failed to issue a reasoned decision and erred in finding that Employer's contest of the Termination Petition was reasonable. The Board affirmed the WCJ's decision, and this appeal by Claimant followed.
This Court's review is limited to determining whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence and whether constitutional rights were violated. Sysco Food Services of Philadelphia v. Workers' Compensation Appeal Board (Sebastiano), 940 A.2d 1270 (Pa. Cmwlth. 2008).
On appeal, Claimant contends that the WCJ erred in failing to amend the NCP's description of injury to include a work-related meniscal tear of the left knee. He argues that his testimony clearly demonstrates a direct nexus between the work injury and his meniscus tear because his testimony about the mechanism of injury is consistent with the type of injuries that cause medial meniscus tears, and nothing in his medical record indicates that he had prior injuries relative to his left medial meniscus. Moreover, Claimant contends that Dr. Girton's opinion that Claimant's pain symptoms were unrelated to the work injury was unsupported by the evidence of record, and, therefore, the WCJ erred in relying on his testimony.
In concluding that Claimant failed to meet his burden of proving that he sustained a meniscal tear as a result of the work injury, the WCJ simply found Dr. Girton's testimony regarding causation of the meniscal tear to be more credible than that of Dr. Mauthe. The WCJ provided an extensive list of reasons for that credibility determination. (March 8, 2011 WCJ Decision at ¶42). Because "[i]t is well established that the WCJ is the ultimate fact finder and is empowered to determine witness credibility and evidentiary weight," Shannopin Mining Company v. Workers' Compensation Appeal Board (Sereg), 11 A.3d 623, 627 (Pa. Cmwlth. 2011), by accepting Dr. Girton's testimony as more credible, the WCJ had substantial evidence to deny Claimant's Review Petition.
Claimant also argues that the WCJ erred in finding that Employer established a reasonable basis for contest of the Termination Petition because the evidence submitted by Employer established that Claimant remained symptomatic from the work injury. Therefore, Claimant contends, he is entitled to counsel fees pursuant to Section 440 of the Act.
That section provides, in relevant part,
In any contested case where the insurer has contested liability in whole or in part, including contested cases involving petitions to terminate, reinstate, increase reduce or otherwise modify compensation awards...the employe or his dependent, as the case may be, in whose favor the matter at issue has been finally determined in whole or in part shall be awarded, in addition to the award for compensation, a reasonable sum for costs incurred for attorney's fees...Provided, That cost for attorney fees may be excluded when a reasonable basis for the contest has been established by the employer or the insurer.
An employer has the burden of proving a reasonable basis for its contest. LaChina v. Workmen's Compensation Appeal Board, 664 A.2d 204, 206 (Pa. Cmwlth. 1995). Generally, a reasonable contest is one which is prompted by a genuinely disputed issue and not merely done to harass a claimant. Id. A reasonable contest will be found where the medical evidence is conflicting or susceptible to contrary inferences. Id. It is well established that for a contest to be reasonable, an employer must "have in its possession at the time of the decision to contest or shortly thereafter medical evidence supporting that position." Id.
Although Dr. Girton testified that Claimant still had pain in his knee during his examination, he attributed Claimant's symptoms at that time to a bone spur in Claimant's fibula and degenerative changes that were unrelated to the work injury, and the WCJ accepted that testimony as credible. Dr. Girton consistently testified that as of the date of his examination, Claimant had fully recovered from the knee sprain he suffered at work on October 13, 2008. Therefore, the evidence submitted by Employer supported its position that Claimant had fully recovered from his work injury, and the WCJ did not err in finding a reasonable basis for the contest.
Accordingly, the order of the Board is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 13th day of July, 2012, the order of the Workers' Compensation Appeal Board, dated January 12, 2012, at No. A11-0553, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge
77 P.S. §996(a). Section 440 of the Act was added by the Act of February 8, 1972, P.L. 25.