Opinion
No. 408 C.D. 2014
11-10-2014
Christina Miller, Petitioner v. Workers' Compensation Appeal Board (Professional Technicians, Inc.), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Christina Miller (Claimant) petitions for review of the February 4, 2014 order of the Workers' Compensation Appeal Board (Board), which affirmed the decision of a workers' compensation judge (WCJ) to deny Claimant's review petition and terminate Claimant's benefits. On appeal, Claimant argues that the WCJ erred in terminating her benefits when Professional Technicians, Inc. (Employer) did not file a termination petition or specifically request that her benefits be terminated. We affirm.
Claimant worked for Employer as a mobile phlebotomist, driving to patients' homes to draw blood samples. On July 8, 2010, Claimant slipped and fell down a flight of stairs while in the course and scope of her employment. On July 26, 2010, Employer issued a notice of temporary compensation payable, listing Claimant's injury as a sprain and strain of the wrist due to a trip and fall. On September 28, 2010, Employer issued a notice of compensation payable (NCP), accepting liability for a sprain and strain of Claimant's left wrist. (WCJ's Finding of Fact No. 1.)
On December 8, 2010, Ronald N. Rosenfeld, D.O., M.D., performed an independent medical evaluation of Claimant. On January 19, 2011, Claimant filed a review petition, alleging that the NCP contained an incorrect description of her injury. Claimant requested that the NCP be amended to include cervical and lumbar disc bulges; injuries to both of her knees, her left elbow, and ankle; and a more severe injury to her wrist. Employer filed a timely answer, stating that it had accepted liability for a left wrist sprain/strain and denying that Claimant sustained any other injuries. In addition, Employer pled that it reserved the right to assert additional defenses pending investigation. (WCJ's Finding of Fact No. 2; Reproduced Record (R.R.) at 100a-02a, 105a-06a, 156a-57a.) The case was assigned to a WCJ.
At a hearing held on May 9, 2011, Claimant testified that she takes pain and anti-inflammatory medication and had seen various doctors to address the pain in her back and in her left knee, elbow, and wrist. Claimant also presented the deposition testimony of William Ingram, M.D., who is board certified in family medicine. Dr. Ingram testified that, based upon Claimant's medical history and his physical examination of Claimant, he diagnosed Claimant as having traumatic synovitis of the left wrist; cervical and lumbar radiculopathy; left brachial plexopathy; muscular ligamentous strain and sprain of the cervical/thoracic lumbar spine; left knee with possible plica; post traumatic sprain of the left ankle; and contusion and sprain of the left forearm with lateral epicondylitis. Dr. Ingram opined that all of these injuries were caused by Claimant's work accident, and he stated that Claimant is not capable of working in any capacity due to her work injuries. According to Dr. Ingram, Employer's acceptance of Claimant's work injury as a left wrist sprain and strain in the NCP did not correctly list all of the injuries that Claimant sustained, and the NCP should be expanded to include his above diagnoses. (WCJ's Findings of Fact Nos. 4, 7; R.R. at 28a.)
Employer presented the December 7, 2011 deposition testimony of Dr. Rosenfeld, who is board certified as an orthopedic surgeon. Dr. Rosenfeld testified that he reviewed Claimant's medical records and performed a medical evaluation of Claimant on December 8, 2010. Dr. Rosenfeld testified that, despite Claimant's reports of severe pain, he found no significant, objective abnormalities on physical examination, and he stated that there was no evidence of significant pathology to Claimant's cervical and lumbar region, her left knee, or her lower and upper extremities. Ultimately, Dr. Rosenfeld opined that Claimant had fully recovered from her injuries, including the sprain and strain to the left wrist, as of December 8, 2010, and determined that she could return to her job as a phlebotomist without restrictions. (WCJ's Findings of Fact No. 8.)
At the conclusion of Dr. Rosenfeld's direct examination, Employer introduced into evidence, as Deposition Exhibit No. 2, Dr. Rosenfeld's report and an affidavit of recovery that he executed on January 5, 2011. (R.R. at 73a, 88a.) On cross-examination, Claimant's counsel sought to undermine the statements in Dr. Rosenfeld's affidavit of recovery and his opinion that Claimant had fully recovered from her injuries, including the sprain and strain to her left wrist, as of December 8, 2010. (R.R. at 88a-95a.)
Included within this exhibit, but not referenced during the deposition or hearing, is a notice of ability to return to work, Form LIBC-757, dated January 7, 2011. This notice states that, based upon Dr. Rosenfeld's affidavit of recovery, Employer "is moving forward to terminate benefits." The preface to Dr. Rosenfeld's deposition, prepared by the stenographer agency, identifies Dr. Rosenfeld's report, the affidavit of recovery, and the notice of ability to return to work as the documents constituting Deposition Exhibit No. 2. (R.R. at 100a-04a.)
However, Employer did not adduce any evidence demonstrating that either the affidavit of recovery or the notice of ability to return to work were mailed or otherwise provided to Claimant in accordance with section 306(b)(3) of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, added by the Act of June 24, 1996, P.L. 350, No. 57 §4, 77 P.S. §512(3). See Summit Trailer Sales v. Workers' Compensation Appeal Board (Weikel), 795 A.2d 1082, 108889 (Pa. Cmwlth. 2002) ("[C]ompliance with the provisions of [s]ection 306(b)(3) is a threshold burden which must be met in order to obtain a modification or suspension of Claimant's benefits.").
By decision dated April 9, 2012, the WCJ determined that Claimant's testimony was not credible or persuasive and found that she only suffered a sprain and strain to her left wrist. The WCJ found the testimony of Dr. Rosenfeld to be more credible and persuasive than that of Dr. Ingram, accepted Dr. Rosenfeld's testimony as fact, and rejected the testimony of Dr. Ingram to the extent that it conflicted with Dr. Rosenfeld's testimony. (WCJ's Findings of Fact Nos. 10-11, 13.)
Based upon these credibility determinations, the WCJ found that Claimant sustained only a sprain and strain of her left wrist on July 8, 2010. Accordingly, the WCJ concluded that Claimant failed to sustain her burden of proof on the review petition. The WCJ further determined that Claimant fully recovered from her left wrist sprain and strain as of December 8, 2010. Consequently, the WCJ terminated Claimant's benefits as of that date. (WCJ's Findings of Fact Nos. 14-15; WCJ's Conclusions of Law Nos. 2-3.)
On appeal to the Board, Claimant asserted, among other things, that the WCJ erred in sua sponte terminating her benefits when Employer did not file a termination petition or request a termination of benefits. Relying on McQuilken v. Workers' Compensation Appeal Board (Prudential), 770 A.2d 376 (Pa. Cmwlth. 2001), the Board stated that a WCJ may terminate benefits without a specific request from an employer when the employer is litigating a claim petition, because the duration of benefits is always at issue in a claim petition. The Board then cited Jeanes Hospital v. Workers' Compensation Appeal Board (Hass), 872 A.2d 159 (Pa. 2005), which held that a claimant can file a review petition to add injuries to the NCP when an NCP does not correctly reflect all of a claimant's injuries, and explained that such a proceeding is identical to a claim petition. Relying on these two principles of law, the Board affirmed the WCJ's termination of benefits, concluding that the issue of Claimant's recovery was properly before the WCJ by virtue of her review petition. In addition, the Board referenced Hutter v. Workmen's Compensation Appeal Board (Pittsburgh Aluminum Co.), 665 A.2d 554 (Pa. Cmwlth. 1995), and stated that Claimant was put on notice that her benefits may be terminated when Dr. Rosenfeld executed an affidavit of recovery and testified that Claimant had fully recovered from her work injury. (Board's decision at 6-7.)
On appeal to this Court, Claimant only contests the WCJ's decision to terminate her benefits, and she does not challenge the WCJ's determination that she failed to sustain her burden of proof on the review petition alleging additional injuries. Claimant contends that the WCJ erred in terminating her benefits because Employer did not file a termination petition or raise the issue of full recovery during the proceedings before the WCJ. Claimant also asserts that termination was improper because the WCJ's adjudication of her review petition did not involve the issues of her ongoing disability or the duration of her benefits.
Our scope of review is limited to determining whether constitutional rights have been violated, whether an error of law has been committed, or whether findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
"The general rule in workers' compensation is that if an employer wants to change the character of the claimant's disability, the employer must file a petition specifically requesting the relief sought." Krushauskas v. Workers' Compensation Appeal Board (General Motors), 56 A.3d 64, 69 (Pa. Cmwlth. 2012) (en banc), appeal denied 63 A.3d 1250 (Pa. 2013). However, our courts have recognized exceptions to this rule and have permitted a WCJ to terminate benefits even though the employer had not filed a termination petition or formally requested termination.
For example, in Krushauskas, the employer issued an NCP and thereafter unilaterally suspended the claimant's benefits. In response, the claimant filed a penalty petition, alleging that the employer violated the Act by decreasing his benefits without a supplemental agreement or judicial order. At the hearing, the employer introduced evidence that immediately prior to ceasing the claimant's benefits, the claimant signed an agreement that required him to retire. After rejecting the claimant's testimony as not credible, the WCJ determined that the claimant voluntarily retired from the workforce and suspended the claimant's benefits. Although the employer never filed a suspension petition, this Court in Krushauskas concluded that the WCJ did not err in suspending benefits because: the claimant's penalty petition was based on the employer's unilateral suspension of benefits, and the employer, by denying the material allegations in the petition, was obviously seeking a continuation of that suspension; the employer introduced testimonial and documentary evidence that the claimant voluntarily retired from the workforce, and the claimant had the opportunity to cross-examine or contest this evidence; and, finally, the claimant did not attempt to introduce additional evidence on his behalf, even though "it was abundantly clear" that the employer was seeking a suspension due to the claimant's voluntary retirement from the workforce. 56 A.3d at 72.
In Krushauskas, this author joined the dissenting opinion of President Judge Pellegrini, who disagreed with the majority for effectively holding "that as long as a party has notice of what is being sought, the WCJ has the right to decide anything in the context of any proceeding without filing anything." 56 A.3d at 74 (Pellegrini, P.J., dissenting). Irrespective of the merits of President Judge Pellegrini's position, we are bound to apply the rationale utilized by the majority in Krushauskas.
Indeed, this Court has "never required absolute and unreasonable strictness in pleadings in workers' compensation cases, and, if one party effectively puts the adverse party on notice as to the theory of relief which is sought, the WCJ will be authorized to grant the relief requested." Id. We recently held:
[A] WCJ has authority to suspend/terminate a claimant's benefits in the absence of a formal petition where doing so would not be prejudicial to the claimant, i.e., the claimant is put on notice that a suspension/termination is possible and is given the opportunity to defend against it. Whether the claimant has adequate notice depends on the totality of the circumstances of a particular case. This includes the procedural history, the factual history, the nature of the claimant's petition, and the nature of the employer's response to the claimant's petition.Id. at 71.
In determining whether a claimant had adequate notice of a potential termination, courts must discern whether the petition before the WCJ generally concerns the issue of the claimant's full recovery or involves a similar inquiry, id. & n.6, such as the extent of the claimant's disability. McQuilken, 770 A.2d at 379. This factor is highly critical, but not dispositive. Krushauskas, 56 A.3d at 71 & n.6. An example of a proceeding in which the issue of full recovery is properly before the WCJ is when a claimant files a claim petition. In a claim proceeding, "the claimant has the burden of proving the extent of his disability, and a [WCJ] may accordingly determine for what period of time such disability existed." Id. at 69 (quoting Hutter, 665 A.2d at 556). Thus, the WCJ may grant benefits for a closed period of time and then terminate benefits. Id.
There are other circumstances that tend to demonstrate that a claimant has received adequate notice that termination is possible. One such instance is where an employer provides the claimant with the deposition testimony and/or report of its expert that unequivocally states that the claimant is no longer injured as of the date the expert examined the claimant. Krushauskas, 56 A.3d at 70 (citation omitted). In Hutter, we explained:
[The claimant] was provided with the deposition of [the employer's] medical expert, and the deposition emphatically stated that [the claimant] was no longer injured as of February 27, 1992, the date the expert examined her. This clearly notified [the claimant] that [the employer] was seeking a termination. There was, therefore, no prejudice to [the claimant], nor denial of an opportunity to defend against the termination request.Id. at 557. Similarly, in Frontini v. Workers' Compensation Appeal Board (Parks Moving & Storage), 702 A.2d 8 (Pa. Cmwlth. 1997), this Court observed:
[The claimant] was examined by [the employer's] medical expert on May 23, 1994. That expert's March 9, 1995 deposition and his attached report, in which he stated that he found no objective symptoms and no reason claimant could not return to work, was available to the claimant. The expert was cross-examined in that deposition by claimant's counsel. . . . [The claimant] was aware that [the employer] intended to prove that [the claimant] was no longer disabled from his work-related injury; he had ample opportunity to refute [the employer's] allegations.Id. at 14.
Another instance that tends to prove notice is when the employer denies the material allegations of the claimant's petition and the circumstances surrounding the denial suggest that the employer no longer believes that the claimant is injured. See Krushauskas, 56 A.3d at 72. Ultimately, if the claimant is placed on adequate notice that termination is "possible," the claimant cannot assert prejudice or an inability to defend against termination, and "the WCJ [is] empowered to take appropriate action based on the evidence presented." Id.
In this case, Claimant filed a review petition pursuant to the first paragraph of section 413(a) of the Act, seeking to correct the NCP to include injuries that she allegedly sustained on July 8, 2010, that were not listed in the NCP. Section 413(a) of the Act expressly mandates that a review petition filed pursuant to that section be treated the same "as if such petition were an original claim petition." 77 P.S. §773. Our Supreme Court has held that
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §771. In relevant part, section 413(a) of the Act states that a WCJ "may, at any time, review and modify or set aside a[n] [NCP] ... upon petition filed by either party ... or in the course of the proceedings under any petition pending before [a WCJ], if it be proved that such [NCP] ... was in any material respect incorrect." 77 P.S. §771.
Our courts have held that section 413(a) of the Act pertains to "corrective amendments" and applies in circumstances where an NCP is inaccurate in its description or identification of the nature or extent of the claimant's existing injury. Cinram Manufacturing, Inc. v. Workers' Compensation Appeal Board (Hill), 975 A.2d 577, 58081 (Pa. 2009). It is the burden of the party seeking to correct a NCP to prove that it was materially incorrect when it was issued, and an NCP is materially incorrect if the accepted injury fails to include all of the injuries that the claimant suffered in the work incident. City of Philadelphia v. Workers' Compensation Appeal Board (Smith), 946 A.2d 130, 137 (Pa. Cmwlth. 2008) (citation omitted).
[w]hen an NCP description of injury does not correctly reflect the actual injury or enumerate all of the injuries sustained in a work-related incident, [s]ection 413(a) sets forth the procedure by which the NCP is modified. Pursuant to [s]ection 413(a), a claimant must file a Petition to Review Notice of Compensation Payable, which is treated like a claim petition. As in a claim petition, the claimant has the burden of proving all elements to support the claim for benefits.Jeanes Hospital, 872 A.2d at 169.
In a claim proceeding, the burden is on the claimant to establish a right to compensation, including the burden to establish the extent and duration of disability. Pennsylvania Uninsured Employers Guaranty Fund v. Workers' Compensation Appeal Board (Bonner and Fitzgerald), 85 A.3d 1109, 1115 (Pa. Cmwlth. 2014). With respect to the duration requirement, the claimant must demonstrate that the injury continues to cause disability throughout the pendency of the proceedings. Innovative Spaces v. Workmen's Compensation Appeal Board (DeAngelis), 646 A.2d 51, 54 (Pa. Cmwlth. 1994). Accordingly, in a claim petition proceeding, an employer is free to submit evidence that a claimant had fully recovered as of a certain date, and a WCJ is free to determine the chronological length of the disability. Ricks v. Workers' Compensation Appeal Board (Parkway Corp.), 704 A.2d 716, 719 (Pa. Cmwlth. 1997). Because a review petition must be treated as if a claim petition, the same principles apply.
In this case, although Claimant did not have to re-establish that she sustained a compensable injury in the form of a left wrist sprain or strain, which was already accepted in the NCP, see Beissel v. Workmen's Compensation Appeal Board (John Wanamaker, Inc.), 465 A.2d 969, 972 n.6 (Pa. 1983) (stating that an NCP "amounts to an admission by the employer of the claimant's employment, the occurrence of the accident, and the nature of the injuries caused by the accident while the claimant was in the employ of the employer."), her review petition sought to modify the NCP and expand the definition of the injury to her left wrist to include the more severe medical condition of traumatic synovitis. Claimant bore the burden to prove that rather than sustaining merely a strain and sprain, she, in fact, sustained traumatic synovitis to her left wrist on the date of her injury and continued to suffer from that condition throughout the review petition proceedings. See DeGraw v. Workers' Compensation Appeal Board (Redner's Warehouse Markets, Inc.), 926 A.2d 997, 1000 (Pa. Cmwlth. 2007) (following Jeanes Hospital and reiterating that in a review petition to modify an NCP, a claimant bears the burden of proving all the elements necessary in a claim petition). Consequently, Claimant squarely placed the physical condition of her left wrist at issue in these proceedings, including the extent and duration of any lesser-included injury that she may have endured to that body part. See Commonwealth v. LaCava, 666 A.2d 221, 234 (Pa. 1995) ("Having 'opened the door' to this subject, appellant cannot now complain because [appellee] chose to further examine what was behind that door."). Under these circumstances, Claimant cannot now complain that these issues were not properly addressed by the WCJ.
Moreover, Dr. Rosenfeld examined Claimant shortly before she filed her review petition. Dr. Rosenfeld testified in his deposition that, upon examining Claimant, he did not observe any tenderness in her left wrist area and that the range of motion was normal. (R.R. at 84a.) In his affidavit of recovery, Dr. Rosenfeld opined unequivocally that Claimant had fully recovered from her left wrist sprain and strain. (R.R. at 103a.) Finally, Claimant sufficiently tested Dr. Rosenfeld's opinion that she had fully recovered from her sprain and strain on cross-examination, (R.R. at 88a-95a), and Claimant offered her own expert's opinion that she sustained traumatic synovitis to her left wrist. (R.R. at 27a-28a, 39a.) As a result, we conclude that Claimant had a full and fair opportunity to assert her disability status, and, in the process, defend against termination. See Frontini, 702 A.2d at 14; Hutter, 665 A.2d at 557.
Because Claimant's review petition explicitly raised the issue of the nature and extent of her wrist injury and Employer presented Dr. Rosenfeld's testimony and documentary evidence that she had fully recovered from her left wrist sprain and strain, we agree with the Board that Claimant received adequate notice that termination of her benefits was possible.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge President Judge Pellegrini concurs in the result only. ORDER
AND NOW, this 10th day of November, 2014, the February 4, 2014 order of the Workers' Compensation Appeal Board is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge