Opinion
No. 1659 C.D. 2012
02-26-2013
Julio Pazymino, Petitioner v. Workers' Compensation Appeal Board (Crime Prevention Association), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Julio Pazymino (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed the 2011 decision of a Workers' Compensation Judge (WCJ) granting a Petition for Termination of Compensation Benefits (2006 Termination Petition) filed July 7, 2006 by Crime Prevention Association (Employer) and denying Claimant's March 2010 Petition for Penalties (2010 Penalty Petition). That 2011 WCJ Decision was issued following a remand ordered by this Court of the Board's affirmance of the same WCJ's prior 2008 decision granting the 2006 Termination Petition. This Court's remand order directed that the WCJ issue new factual findings and make a new determination on the 2006 Termination Petition after considering all of Claimant's work-related injuries found by a different WCJ in a 2004 decision denying an earlier Termination Petition. Paz y Mino v. Workers' Compensation Appeal Board (Crime Prevention Association), 990 A.2d 832, 844 (Pa. Cmwlth. 2010). We affirm.
Claimant's last name has also been spelled as "Paz y Mino" in the record and in the course of these proceedings, including this Court's prior opinion in this case. In this opinion, we use the spelling used in the caption of Claimant's Petition for Review.
Facts and Procedural History
Claimant worked as the Director of Child Care Information for Employer, a non-profit agency that provides childcare subsidies for families in Philadelphia. (990 A.2d at 834; 2004 WCJ Decision, Findings of Fact (2004 WCJ F.F.) ¶9d, Reproduced Record (R.R.) at 859a.) Claimant's job was largely sedentary; 85% of his job was sitting and the only other physical activities consisted of walking, standing and travel by car and plane. (2004 WCJ F.F. ¶9f, R.R. at 860a.) On June 20, 2000, Claimant, then age 54, sustained work-related injuries to his back when he tripped over boxes, fell backwards, and landed on a concrete floor. (990 A.2d at 834; 2004 WCJ F.F. ¶1, R.R. at 858a; Workers' Compensation Insurer Claim Summary Report, R.R. at 763a.) For over three years, Claimant did not miss any time from work due to these work-related injuries, but received physical therapy. (990 A.2d at 834; 2004 WCJ F.F. ¶¶1, 9a, 10e, R.R. at 858a-860a.) Employer paid Claimant's medical bills, including his physical therapy bills, but in July 2003 stopped paying for physical therapy based on the results of a Utilization Review (UR) Determination. (990 A.2d at 834; 2004 WCJ Decision F.F. ¶¶1, 9a, 10e, R.R. at 858a-860a.) On July 29, 2003, Claimant filed a Petition for Review of the UR Determination seeking restoration of physical therapy payments. (2004 WCJ Decision F.F. ¶3, R.R. at 858a.)
In September 2003, Claimant reduced the number of hours that he worked to four hours per day due to increased pain and filed a Petition for Modification on the grounds that his condition had worsened. (990 A.2d at 834-35; 2004 WCJ Decision F.F. ¶¶4, 9a, 9c, 10e, 10f, R.R. at 858a-861a.) Following Claimant's reduction in hours, Employer issued a Notice of Compensation Payable (NCP) that described Claimant's work-related injuries as a lumbar strain and sprain, and filed a Termination Petition alleging that Claimant had fully recovered from his injuries as of December 31, 2003. (990 A.2d at 835; 2004 WCJ Decision F.F. ¶¶2, 5, R.R. at 858a.) In March 2004, Claimant filed a Penalty Petition. (2004 WCJ Decision F.F. ¶6, R.R. at 858a.)
On October 28, 2004, WCJ Sarah Makin (First WCJ) issued a decision and order on these petitions, granting Claimant's Modification Petition and UR Determination Review Petition, denying Employer's Termination Petition and denying Claimant's Penalty Petition. (990 A.2d at 835 & n.3; 2004 WCJ Decision, R.R. at 855a-866a.) In that 2004 decision, the First WCJ credited the testimony of Claimant's physician, Dr. Lerman, over the testimony of Employer's expert witness, Dr. Bosacco. (990 A.2d at 835; 2004 WCJ F.F. ¶¶15-16, R.R. at 863a.) Based on Dr. Lerman's testimony, the First WCJ found that Claimant had severe stenosis, a narrowing of the spine between the vertebrae, at the L4-L5 level, mild stenosis at the L3-L4 level, and radiculopathy, nerve root involvement, at the L4-L5 level. (990 A.2d at 835-36; 2004 WCJ F.F. ¶10, R.R. at 860a-861a.) The First WCJ found that Claimant's stenosis pre-dated his 2000 fall and did not find that the fall caused the stenosis or increased the narrowing in his spine, but did find, based on Dr. Lerman's testimony, that the fall had caused the stenosis to become "truly symptomatic with nerve involvement." (990 A.2d at 835-36 (emphasis omitted); 2004 WCJ F.F. ¶¶10c, 10f, 10g, R.R. at 860a-861a.) The First WCJ noted that the radiculopathy "was evidence of recent trauma for that nerve distinguishing it from a chronic problem that Claimant had had since 1992." (990 A.2d at 836; 2004 WCJ F.F. ¶10c, R.R. at 860a.)
Based on these findings and Claimant's and Dr. Lerman's testimony that Claimant could only work four hours per day, the First WCJ awarded Claimant partial disability benefits as of September 8, 2003. (990 A.2d at 835; 2004 WCJ F.F. ¶¶9c, 10e, 10f, 13, 18, R.R. at 859a-864a.) No appeal was taken by Employer or Claimant from the 2004 WCJ decision, and Employer's workers' compensation insurance carrier paid Claimant partial disability benefits in accordance with the 2004 WCJ decision. (990 A.2d at 836.) For the period February 2004 to February 2005, Claimant was erroneously paid both his full salary and partial disability benefits, resulting in an overpayment of $22,015.04. (990 A.2d at 836-38; 2008 WCJ Decision, Findings of Fact (2008 WCJ F.F.) ¶¶52-53, 57.) Claimant subsequently reduced his work schedule to only one and one-half hours per day in the office, was moved by Employer to inactive status and in July 2006 began receiving total disability benefits for his 2000 fall. (2008 WCJ F.F. ¶¶13-16.)
On April 25, 2006, an orthopedic surgeon retained by Employer, Dr. Jeffrey Malumed, performed an independent medical examination of Claimant. (Malumed Dep. & Malumed Ex. 2, R.R. at 32a, 75a-78a.) On the basis of that examination, Employer filed the 2006 Termination Petition at issue here, alleging that Claimant had fully recovered from his injuries and was able to return to unrestricted work as of that date. (2011 WCJ Decision, Findings of Fact (2011 WCJ F.F.) ¶2; 2008 WCJ F.F. ¶1; 990 A.2d at 836.) On August 16, 2006, Employer also filed an Offset Petition, seeking to recover the overpayment. (990 A.2d at 836; 2008 WCJ F.F. ¶2.)
These petitions were assigned to WCJ Kathleen DiLorenzo (Second WCJ), who held an evidentiary hearing at which Claimant testified and also received testimony by deposition, including the testimony of Employer's examining physician, Dr. Malumed, and Claimant's physician, Dr. Lerman. (990 A.2d at 836; 2008 WCJ F.F. ¶5.) On April 9, 2008, the Second WCJ issued a decision and order granting both the 2006 Termination Petition and the Offset Petition. (990 A.2d at 837; 2008 WCJ Decision at 14-15.) In this decision, the Second WCJ credited the testimony of Dr. Malumed over the testimony of Claimant and Dr. Lerman. (990 A.2d at 837; 2008 WCJ F.F. ¶5.) Based on Dr. Malumed's testimony, the Second WCJ found that Claimant had recovered both from his lumbar sprain and strain and the L4-L5 radiculopathy found by the First WCJ in the 2004 WCJ decision, and concluded that Claimant was able to return to work as of April 25, 2006 without restrictions related to what she held to be his work-related injuries. (990 A.2d at 837-38; 2008 WCJ F.F. ¶¶42-45, 47-48.) The Second WCJ, however, did not consider any of Claimant's problems from his spinal stenosis to be part of his work-related injuries, and therefore did not consider those problems in ruling that Claimant had recovered from his work-related injuries. (990 A.2d at 837-38; 2008 WCJ F.F. ¶¶9, 46.)
Claimant appealed this 2008 WCJ Decision to the Board. On December 30, 2008, the Board affirmed the granting of both the Offset Petition and the 2006 Termination Petition, upholding the Second WCJ's ruling on the 2006 Termination Petition on the grounds that the First WCJ had not expanded the description of Claimant's work-related injuries, and that Dr. Malumed's credited testimony was sufficient to support the termination of benefits. (990 A.2d at 838; 2008 Board Opinion at 10-11.). Claimant appealed the 2008 Board Decision to this Court, seeking reversal with respect to both the Offset Petition and the 2006 Termination Petition. (990 A.2d at 838-39.) With respect to the termination of benefits, Claimant argued that the Second WCJ erroneously limited the scope of Claimant's work-related injuries, and that Dr. Malumed's testimony was not competent and sufficient to establish that Claimant had fully recovered from all work-related injuries. (990 A.2d at 838-39.)
On February 26, 2010, this Court, sitting en banc, issued an opinion and order affirming the 2008 Board Decision with respect to the Offset Petition, but vacating as to the 2006 Termination Petition. (990 A.2d at 844.) This Court held that the Second WCJ erred in failing to recognize that Claimant's accepted work injuries included the aggravation of his pre-existing stenosis found by the First WCJ in the 2004 WCJ Decision, and in granting the 2006 Termination Petition without considering whether Claimant had fully recovered from that aggravation of his stenosis. (990 A.2d at 840.) The Court did not address Claimant's arguments that Dr. Malumed's testimony was not competent and it was insufficient to support the termination of benefits. (990 A.2d at 840 n.10.) This Court ordered that the case be
remanded to the Board for further remand to the Workers' Compensation Judge (WCJ) to issue new factual findings and make a new determination on the Termination Petition after considering all of Julio Paz y Mino's (Claimant) accepted work-related injuries, including the aggravation of his spinal stenosis.(990 A.2d at 844.) Following this Court's decision, on March 29, 2010, Claimant filed the 2010 Penalty Petition, alleging that Employer had "failed to pay claimant TTD [temporary total disability benefits] pursuant to the Commonwealth Court decision of 2/26/10." (2010 Penalty Petition at 2.)
On February 9, 2011, the Second WCJ issued the 2011 WCJ Decision at issue in this appeal. In the 2011 WCJ Decision, the Second WCJ made new factual findings pursuant to the remand, again granted the 2006 Termination Petition, and denied Claimant's 2010 Penalty Petition. (2011 WCJ F.F. ¶¶13, 35, 38, 42, 45-55; 2011 WCJ Decision at 27.)
With respect to the 2006 Termination Petition, the Second WCJ found Dr. Malumed's testimony credible and more persuasive than Dr. Lerman's testimony, because Dr. Malumed's testimony was supported by examination results and test results, including MRIs of Claimant's stenosis and tests that Dr. Malumed performed for radiculopathy. (2011 WCJ F.F. ¶8.) The Second WCJ specifically considered the aggravation of Claimant's stenosis that the First WCJ found to be a work-related injury, that the 2000 fall had caused the stenosis to become "symptomatic with nerve involvement." (2011 WCJ F.F. ¶¶13, 35; 2004 WCJ F.F. ¶10g, R.R. at 861a.) Based on Dr. Malumed's testimony, the Second WCJ found that as of April 25, 2006, Claimant no longer had any radiculopathy, that Claimant's condition had improved since the prior Termination Petition, that Claimant had fully recovered from all of his work-related injuries, including the aggravation of his stenosis, and that Claimant was able to perform the work duties of his job. (2011 WCJ F.F. ¶¶13, 35, 47-49, 51-55.) While Claimant had some chronic back pain from his stenosis, the Second WCJ found, based on Dr. Malumed's testimony, that this was a result of the normal progression of his pre- existing stenosis independent of his 2000 fall, not a result of the aggravation of the stenosis caused by that fall. (2011 WCJ F.F. ¶¶49-54.)
With respect to Claimant's 2010 Penalty Petition, the Second WCJ found that Employer had paid all amounts that it owed Claimant for medical treatment and disability benefits. (2011 WCJ F.F. ¶28.) The only amount owed by Employer that the Second WCJ found had not been fully paid consisted of this Court's April 29, 2010 award of $1,529.80 in costs on the appeal of the 2008 Board Decision, and the Second WCJ ordered Employer to pay Claimant or Claimant's counsel that award. (2011 WCJ F.F. ¶28; 2011 WCJ Decision at 27.)
Claimant appealed the 2011 WCJ Decision to the Board. On August 17, 2012, the Board issued an opinion affirming the 2011 WCJ Decision in its entirety, holding that Dr. Malumed's testimony was competent and sufficient to support the termination of benefits and that the Second WCJ acted within her discretion in denying penalties. (2012 Board Decision at 5-11.) This petition for review appealing the 2012 Board Decision followed.
Our review is limited to determining whether there has been any error of law or violation of constitutional rights, and whether the WCJ's necessary findings of fact are supported by substantial evidence. Paz y Mino, 990 A.2d at 838 n.6.
Discussion
In this Court, Claimant seeks reversal of both the granting of Employer's 2006 Termination Petition and the denial of his 2010 Penalty Petition. We address each of these matters in turn. The Termination of Benefits
A claimant's benefits under the Workers' Compensation Act (Act) may be terminated where the employer establishes by unequivocal and competent medical testimony that the claimant's disability has ceased or that any remaining disability is not related to the work-related injury. O'Neill v. Workers' Compensation Appeal Board (News Corp. Ltd.), 29 A.3d 50, 53 (Pa. Cmwlth. 2011); Hall v. Workers' Compensation Appeal Board (America Service Group), 3 A.3d 734, 740 (Pa. Cmwlth. 2010); Westmoreland County v. Workers' Compensation Appeal Board (Fuller), 942 A.2d 213, 217 (Pa. Cmwlth. 2008). Employer sustained this burden by submitting the unequivocal expert testimony of Dr. Malumed, a board certified orthopedic surgeon who had examined Claimant, who opined that Claimant had fully recovered from all of his work-related injuries, including aggravation of his stenosis, and that Claimant was able to return to his job, and the Second WCJ found that expert testimony credible. (Exhibit D-1, Malumed Dep., R.R. at 27a, 37a-38a, 42a-48a, 51a; 2011 WCJ F.F. ¶¶8, 13, 47-55.)
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
Claimant contends that Dr. Malumed's testimony was not competent to support the termination of benefits because Dr. Malumed did not believe that Claimant had suffered any injury from his fall beyond a lumbar sprain and strain, and that it was also insufficient because Dr. Malumed testified that Claimant has some present chronic back pain from stenosis. Neither of these arguments is valid.
Because an employer may not relitigate any of the claimant's accepted work injuries, a medical expert's testimony is not competent to support a termination of benefits if it does not acknowledge the accepted work injuries and opine that the claimant has recovered from those accepted work injuries. O'Neill, 29 A.3d at 55; Hall, 3 A.3d at 740; Westmoreland County, 942 A.2d at 218. Thus, medical expert testimony has been held legally insufficient to support termination of benefits where the expert did not know what the accepted work injuries were as to which he was offering an opinion, Elberson v. Workers' Compensation Appeal Board (Elwyn, Inc.), 936 A.2d 1195, 1200 (Pa. Cmwlth. 2007), where the expert's opinion was that the accepted work injury was not work-related, and not that the claimant had recovered from that injury, Noverati v. Workmen's Compensation Appeal Board (Newtown Squire Inn), 686 A.2d 455, 460 (Pa. Cmwlth. 1996), and where the expert opined only that the claimant had recovered from a different injury, rather than the accepted work injuries. Westmoreland County, 942 A.2d at 218-19; Gillyard v. Workers' Compensation Appeal Board (Pennsylvania Liquor Control Board), 865 A.2d 991, 995-96 (Pa. Cmwlth. 2005); GA & FC Wagman, Inc. v. Workers' Compensation Appeal Board (Aucker), 785 A.2d 1087, 1089-90 (Pa. Cmwlth. 2001).
There is no requirement, however, that the medical expert believe that the claimant actually suffered the accepted work injuries or believe that the accepted work injuries were in fact work-related. It is well established that medical expert testimony that specifically addresses the accepted work injuries and unequivocally opines that the claimant has recovered from those injuries is competent and sufficient to support the termination of benefits, even though the expert does not believe that the injuries occurred or were the result of the work-place accident. O'Neill, 29 A.3d at 57; Hall, 3 A.3d at 741; Jackson v. Workers' Compensation Appeal Board (Resources for Human Development), 877 A.2d 498, 502-03 (Pa. Cmwlth. 2005); To v. Workers' Compensation Appeal Board (Insaco, Inc.), 819 A.2d 1222, 1225 (Pa. Cmwlth. 2003). "A medical expert need not necessarily believe that a particular work injury actually occurred. The expert's opinion is competent if he assumes the presence of an injury and finds it to be resolved by the time of the IME." Hall, 3 A.3d at 741 (citations omitted).
Dr. Malumed's opinion here specifically addressed all of the accepted work injuries, including radiculopathy and aggravation of stenosis, and he unequivocally testified that Claimant had recovered from those injuries. Dr. Malumed was asked by hypothetical question to assume that in addition to a lumbar strain and sprain, the First WCJ had found that Claimant had "severe stenosis at L4-L5 of the lumbar spine, and also had radiculopathy at the L4-L5 level, and also had mild stenosis at the L3-L4" and "that claimant's condition as a result of the work injury had become symptomatic and he had aggravated his underlying condition," and he opined in response that Claimant was "fully recovered" from those accepted work injuries. (Exhibit D-1, Malumed Dep., R.R. at 42a-43a.) Such expert testimony, in response to a hypothetical question that states the accepted work injuries, is competent and sufficient to support termination of benefits, even if the physician does not believe that those injuries occurred or were work-related. O'Neill, 29 A.3d at 57 (expert testimony was competent and sufficient where expert opined in response to hypothetical question that claimant had recovered from the listed injuries); see also Hall, 3 A.3d at 741 (expert testimony was competent and sufficient where expert opined that if aggravation of pre-existing condition occurred, it had resolved); Jackson, 877 A.2d at 501, 503 (expert testimony was competent and sufficient where expert opined that assuming that the accepted injury had occurred, that injury had resolved).
Dr. Malumed did testify that Claimant had some chronic back pain from stenosis at the time of his examination and would continue to have that back pain. (Exhibit D-1, Malumed Dep., R.R. at 41a-42a, 44a-46a, 48a, 50a-51a, 58a-60a.) That does not render his opinion that Claimant had recovered from the accepted work injuries insufficient or invalidate the Second WCJ's termination of benefits. Dr. Malumed's testimony was that this chronic back pain in 2006 was from the progression and worsening of the stenosis itself, a further narrowing in the spine that naturally and gradually occurs with age, not from a change in his condition caused by any trauma or from the symptoms that Claimant had in 2003 that were triggered by his 2000 fall. (Exhibit D-1, Malumed Dep., R.R. at 44a-46a, 48a, 50a-51a, 58a-60a.)
This testimony does not conflict with the First WCJ's finding that the accepted work injuries included an aggravation of Claimant's stenosis. The First WCJ did not find that Claimant's fall caused any physical worsening of Claimant's stenosis. Rather, the only aggravation of Claimant's stenosis found by the First WCJ was that Claimant's "fall had made the degenerative conditions in his back symptomatic" and caused the stenosis to become "truly symptomatic with nerve involvement." (2004 WCJ F.F. ¶¶10f, 10g, R.R. at 861a; see also 990 A.2d at 835-36.) Indeed, Claimant's expert, Dr. Lerman, on whose testimony the First WCJ based the enlargement of the accepted work injury, made clear that Claimant's fall did not actually change or aggravate the stenosis itself, but only made it symptomatic. (Exhibit C-3, Lerman Dep., R.R. 266a-269.)
Moreover, Dr. Malumed's testimony established that Claimant's condition had changed and improved since the First WCJ denied the prior Termination Petition. Dr. Malumed opined, based on his examination and tests that he conducted, that Claimant no longer suffered from the radiculopathy found by the First WCJ. (Exhibit D-1, Malumed Dep., R.R. at 38a, 45a.) That radiculopathy was the feature that the First WCJ found distinguished Claimant's 2003 symptoms from his pre-existing back condition. (2004 WCJ F.F. ¶10c, R.R. at 860a; 990 A.2d at 836.) Dr. Malumed opined not only that Claimant was able to return to work without restrictions connected to the injuries from his fall, but also that given the limited physical demands of Claimant's job, "he should be able to do fine with that also, even with his arthritic condition." (Exhibit D-1, Malumed Dep., R.R. at 47a-48a.)
Because Dr. Malumed's testimony was competent and sufficient to establish that Claimant's disability from his 2000 fall had ceased by April 2006 and that any remaining problems that he had were not related to that fall, the termination of Claimant's benefits was properly affirmed by the Board.
Claimant's Penalty Petition
A WCJ is authorized to impose penalties for violations of the Act. Section 435(d) of the Act, added by the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. § 991(d); Candito v. Workers' Compensation Appeal Board (City of Philadelphia), 785 A.2d 1106, 1108 (Pa. Cmwlth. 2001). Whether a penalty is appropriate and should be awarded, however, is a matter within the discretion of the WCJ. Budd Co. v. Workers' Compensation Appeal Board (Kan), 858 A.2d 170, 176 (Pa. Cmwlth. 2004); Candito, 785 A.2d at 1108; Galloway v. Workers' Compensation Appeal Board (Pennsylvania State Police), 756 A.2d 1209, 1213-14 (Pa. Cmwlth. 2000). Imposition of a penalty is not required, even if a violation of the Act is shown. Budd Co., 858 A.2d at 176; Candito, 785 A.2d at 1108; Galloway, 756 A.2d at 1213-14.
The denial of penalties here was well within the Second WCJ's discretion. The basis of Claimant's 2010 Penalty Petition was that Employer had allegedly failed to pay disability benefits. (2010 Penalty Petition at 2.) The Second WCJ found that Employer paid all amounts that it owed Claimant for medical treatment and disability benefits. (2011 WCJ F.F. ¶28.) Claimant does not dispute that these findings are supported and does not contend that Employer violated the Act with respect to any medical or benefit payments. (Petitioner's Brief at 21.) The only nonpayment found by the WCJ was a failure to pay $1,529.80 in litigation costs that were awarded after Claimant filed the 2010 Penalty Petition. Declining to impose penalties under those circumstances and addressing that minor failure to pay by an order requiring payment (2011 WCJ Decision at 27) is not an abuse of discretion.
Claimant also argues that he should be awarded costs and fees for unreasonable contest if this Court holds that Dr. Malamud's testimony was insufficient to support the 2006 Termination Petition. (Petitioner's Brief at 21-22.) This issue, however, was not raised in Claimant's Petition for Review. (Petition for Review ¶3). It is therefore waived. In any event, there could be no basis for an unreasonable contest claim because we have held that Dr. Malamud's testimony was competent and sufficient and that the 2006 Termination Petition was properly granted. Jackson, 877 A.2d at 504 n.4. --------
For the foregoing reasons, we conclude that the Second WCJ committed no error in granting Employer's 2006 Termination Petition and did not abuse her discretion in denying Claimant's 2010 Penalty Petition. Accordingly, the order of the Board is affirmed.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 26th day of February, 2013, the order of the Workers' Compensation Appeal Board in the above matter is AFFIRMED.
/s/_________
JAMES GARDNER COLINS, Senior Judge