Opinion
No. 599 C.D. 2014
12-02-2014
Linda Weney, Petitioner v. Workers' Compensation Appeal Board (Shop-Rite Aramingo), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Linda Weney (Claimant) challenges the Order of the Workers' Compensation Appeal Board (Board) that affirmed the Workers' Compensation Judge's (WCJ) dismissal of Shop Rite Aramingo's (Employer) Petition to Suspend or Modify Compensation Benefits (Suspension/Modification Petition), grant of Employer's Petition to Modify Compensation Benefits (Modification Petition), and grant of Claimant's Petition for Penalties (Penalty Petition).
On June 20, 2000, Claimant sustained a right shoulder injury while working as a meat wrapper for Employer. Deposition of Linda Weney, September 6, 2011, (Ms. Weney Deposition), at 6. On June 20, 2006, Claimant pushed a meat frame and felt pain her back. Ms. Weney Deposition at 7. The following day, Claimant felt pain travel down her arm and her arm turned blue in color. Ms. Weney Deposition at 7-8. Employer issued a Notice of Temporary Compensation Payable which subsequently converted to a Notice of Compensation Payable that accepted Claimant's injury as a right shoulder strain.
By Decision and Order circulated on October 24, 2004, the WCJ amended Claimant's description of injury to include a cervical sprain aggravating degenerative disc disease at C5-6 and C6-7 and causing a cervical radiculopathy at C6 and C7; thoracic outlet syndrome; right brachial plexopathy; right shoulder burisitis; and right cubital ulnar neuropathy.
On November 14, 2006, Claimant filed a Penalty Petition and alleged that Employer violated the Workers' Compensation Act (Act) when it failed to pay for medical and indemnity benefits. On June 7, 2007, Employer filed a Suspension/Modification Petition based on a labor market survey. On February 7, 2008, Employer filed a Modification Petition based on an impairment rating evaluation (IRE). On March 17, 2008, Claimant filed a second Penalty Petition and again alleged a failure to pay benefits. On December 10, 2008, Employer filed a second Modification Petition based on an IRE.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4; 2501-2708.
Christian I. Fras, M.D. (Dr. Fras), board-certified in orthopedic surgery, testified on behalf of Employer. Deposition of Christian I. Fras, M.D., February 6, 2008, (Dr. Fras Deposition) at 6. Dr. Fras took Claimant's history, reviewed medical records and performed an independent medical evaluation of Claimant on December 13, 2006. Dr. Fras Deposition at 8-17. Dr. Fras recalled that Claimant exhibited an unusual amount of "sleepiness" during his exam. Dr. Fras Deposition at 23. Dr. Fras opined that Claimant was capable of being employed with no restrictions. Dr. Fras Deposition at 19.
Employer presented the deposition testimony of Christopher J. Terranova (Mr. Terranova), a vocational case manager for Vocational Rehabilitation Services, Incorporated. Deposition of Christopher J. Terranova, December 13, 2007, (Mr. Terranova Deposition), at 5-6. Mr. Terranova performed a vocational assessment of Claimant on March 1, 2007, in order to prepare a labor market survey or earning power assessment. Mr. Terranova Deposition at 13 and 15. Claimant was not interested in returning to work in any capacity due to her medical condition. Mr. Terranova Deposition at 17. Mr. Terranova noted Claimant's vocational background and her medical history. Mr. Terranova Deposition at 18 and 20. Mr. Terranova described Claimant's transferable skills as a meat wrapper and ten possible employment positions available to Claimant. Mr. Terranova Deposition at 21-22 and 24-26. Mr. Terranova did not secure approval from any physicians as to whether the employment positions were appropriate for Claimant. Mr. Teranova Deposition at 102.
Employer presented the deposition testimony of Jack Abboudi, M.D. (Dr. Abboudi), board-certified in orthopedic surgery. Deposition of Jack Abboudi, M.D., November 14, 2008, (Dr. Abboudi Deposition) at 7. Dr. Abboudi took Claimant's history, reviewed her records and performed an independent medical evaluation (IME) of Claimant on June 9, 2006. Dr. Abboudi Deposition at 8-30. Dr. Abboudi concluded that Claimant "had right-sided neck pain and upper extremity complaints status post C5-7 anterior cervical fusion." Dr. Abboudi Deposition at 31. Dr. Abboudi did not see any true issue of concern in the upper extremities and cleared Claimant to return to work with no restrictions. Dr. Abboudi Deposition at 35-36.
Employer presented the deposition testimony of Dennis Bonner, M.D. (Dr. Bonner), board-certified in physical medicine and rehabilitation and electro diagnostic medicine. Deposition of Dennis Bonner, M.D., September 15, 2009, (Dr. Bonner Deposition) at 5. Dr. Bonner took Claimant's history, reviewed her records, and performed an IRE of Claimant on October 29, 2007. Dr. Bonner Deposition at 8. Dr. Bonner determined that Claimant was at maximum medical improvement (MMI) and assessed her under the fifth edition of the Guides to the Evaluation of Permanent Impairment (Guides) because it was the most recent edition at that time. Dr. Bonner Deposition at 11-12 and 19. Dr. Bonner diagnosed Claimant with a failed cervical surgery, chronic radiculopathy, chronic pain and chronic shoulder pain with adhesive capsulitis. Dr. Bonner Deposition at 36-37. Dr. Bonner used the diagnosis-related estimates (DRE) method, rather than the range of motion method, because Claimant's impairment was the result of an injury and therefore the range of motion method was contraindicated by the Guides. Dr. Bonner Deposition at 40. Dr. Bonner explained that DRE method and the range of motion method would have resulted in assessments within a few points of each other. Dr. Bonner Deposition at 51.
Claimant testified that Employer did not offer her another position. Ms. Weney Deposition at 23. Claimant had a difficult time receiving her compensation checks and prescription medications when Shane Weaver (Mr. Weaver), the Senior Account Claims Representative for PMA Insurance Group, was her adjustor. Ms. Weney Deposition at 24-25.
Claimant presented the deposition testimony of Mr. Weaver. Mr. Weaver took over Claimant's file in January 2006 and determined which of Claimant's medical bills were paid. Deposition of Shane Weaver, February 8, 2008, (Mr. Weaver Deposition) at 6 and 8. Mr. Weaver denied bills for medical treatment related to brachial neuritis as not work-related. Mr. Weaver Deposition at 15-17. Mr. Weaver outlined the schedule of Claimant's compensation payments, including gaps in February 2006, April 2006, August 2006, November 2006, and December 2006. Mr. Weaver Deposition at 35-41 and 50-54.
Ronald B. Greene, M.D. (Dr. Greene), board-certified in orthopedic surgery, testified on behalf of Claimant. Deposition of Ronald B. Greene, M.D., April 14, 2009, (Dr. Greene Deposition), at 6. Dr. Greene first treated Claimant on November 13, 2000, and took Claimant's medical history, performed an examination, and reviewed her records. Dr. Greene Deposition at 9. Dr. Greene diagnosed Claimant with right brachial plexopathy, right thoracic outlet syndrome secondary to cervical radiculopathy. Dr. Greene Deposition at 15. Dr. Greene examined Claimant again on April 24, 2007, and about five or six more times in 2007, and determined that Claimant's condition continued to decline. Dr. Greene Deposition at 25 and 30. Dr. Greene treated Claimant three times in 2008 and found that Claimant's biggest presentation was emotional and "typical of patients with chronic pain syndrome." Dr. Greene Deposition at 31. Dr. Greene diagnosed Claimant with status post cervical fusion C5-C7 with post fusion deterioration and degeneration of C4-5 greater than C5-6; C4 and C5 radiculopathy; chronic brachial plexopathy or thoracic outlet syndrome with chronic muscular weakness involving the right upper extremity; chronic loss of coordination, strength, and repetitive use of the right upper extremity; chronic nerve root damage in the cervical spine; chronic muscle spasm in the cervical and trapezius muscles in the neck; and chronic pain syndrome. Dr. Greene Deposition at 41-42. Dr. Greene related Claimant's condition to her work-related injury and opined that Claimant's other injuries are an outgrowth of the accepted injuries. Dr. Greene Deposition at 42-44. Dr. Greene also opined that Claimant will continue to worsen over time and that she was not at MMI. Dr. Greene Deposition at 44-45 and 76.
The WCJ determined:
9. Dr. Bonner...undertook an impairment rating evaluation (IRE) of Linda Weney [Claimant]. A physical examination on October 29, 2007 found Ms. Weney [Claimant] could get on and off the examination table '...without difficulty' (N.T., exhibit E-5, p. 10). While the right shoulder displayed 'full' external rotation and '...good' internal rotation, abduction was limited to 120 degrees (N.T. p. 10). All right-sided reflexes were '...somewhat diminished,' grip strength was reduced on the right side and sensation was '...decreased in the C5 and C6 dermatome' (N.T., p. 10). A diagnosis of '...failed cervical surgery, chronic radiculopathy, chronic pain, chronic shoulder pain with adhesive capsulitis' (N.T., p. 10) was offered. Upon reliance on the Fifth Edition of the 'Guides to the Evaluation of Permanent Impairment' in effect at the time, Dr. Bonner computed a 26 percent whole body impairment.
....
A careful record review reveals opinions of ShopRite's [Employer] medical experts (i.e., Drs. Bonner, Abboudi and Fras) are often inconsistent and contradictory. While Dr. Abboudi saw multiple instances where Linda Weney
[Claimant] manipulated the physical examination...Dr. Bonner did not...and Dr. Fras made no such findings. While Dr. Abboudi found no neurologic pathology or any '...true issue of concern in the upper extremities'...Dr. Bonner detected decreased right hand grip strength and diminished sensation along the C5 and C6 dermatomes....
Other problems with ShopRite's [Employer] medical experts are more serious. Despite the Employer's burden to consider all acknowledged or judicially determined work injuries, Central Park Lodge v. [Workers' Compensation Appeal Board (Robinson), 718 A.2d 368 (Pa. Cmwlth. 1998)], Dr. Abboudi did not believe the diagnoses of brachial plexopathy/thoracic outlet syndrome were caused by the work injury....Despite acknowledging Ms. Weney [Claimant] appeared 'sleepy throughout the entire evaluation'..., Dr. Fras did not consider any side-effects from her heavy use of narcotic medication...and neither did Dr. Abboudi...other than to acknowledge her medication '...makes you a little sleepy....'... Interestingly, Dr. Greene was insistent her levels of medications '...make her very tired' and render it 'impossible' for her to work eight hours per day.... In Channellock v. [Workers' Compensation Appeal Board (Reynolds), 965 A.2d 1239 (Pa. Cmwlth. 2008)], the Court required an evaluation of side-effects from medication on a claimant's ability to perform work duties.
Mr. Terranova's earning power assessment also cannot withstand close scrutiny. In at least seven of the ten listed jobs, Mr. Terranova never contacted the employers on or about March 28, 2007 to determine job availability..., relying instead upon their alleged availability on labor market surveys performed on other individuals....(Emphasis in original.)
In short, Dr. Abboudi's inability to see 'any discernible cause for her symptoms'... and Dr. Fras' placing '...no restrictions on those [work] activities'...are not credible. While Dr. Bonner examined both the neck and upper extremities, he by his own admission did not offer any
opinion regarding her ability to work. In short, the Court on this record cannot find Ms. Weney [Claimant] physically able to perform work positions identified by Mr. Terranova.WCJ's Decision, October 1, 2012, (WCJ's Decision), Finding of Fact (F.F.) No. 9 at 5 Discussion at 8-10.
....
...Dr. Bonner clearly indicated Ms. Weney [Claimant] seven years post injury was at maximum medical improvement (MMI), her condition according to the medical records had 'plateaued' and no therapetutic significant intervention is planned....
Dr. Bonner specifically examined the Claimant's neck, wrists, elbows, shoulder and hands..., further noting he 'accomodated' the work-related diagnoses of thoracic outlet syndrome, brachial plexopathy, cubital tunnel and ulnar neuropathy within the diagnosis of cervical radiculopathy (i.e., it is the '...same symptomology...it's the same problem...')....
....
As to the RS medical bills, it is true they were initially submitted on proper Bureau forms and denied by PMA as not work-related.... However, Mr. Weaver indicates the bills lacked proper supporting documentation....Unless and until the provider supplements the bills with required medical reports, the employer is not obligated to pay for the treatment billed. AT&T v. [Workers' Compensation Appeal Board (DiNapoli), 728 A.2d 381 (Pa. Cmwlth. 1999)]. Counsel for Ms. Weney [Claimant] never introduced evidence to establish proper documentation was submitted with these medical bills.
Although Section 435 has existed since 1972, few appellate court decisions delineate factors a Workers' Compensation Judge should consider in the exercise of 'discretion.' One would believe, however, the appellate courts would agree not all employer violations are created equal and not all violations impact in the same manner against a claimant. It would seem logical a WCJ conduct some sort of balancing test weighing the seriousness of the employer's violation with its effect upon a claimant.
The Board affirmed.
On appeal, Claimant contends that the WCJ committed an error of law when it granted Employer's Modification Petition because the doctor's IRE was not valid. Claimant also argues that the WCJ erred when he awarded a penalty in the amount of $1,000.00 and held that Claimant failed to prove that PMA Insurance Company violated the Act when it failed to pay her medical bills.
This Court's review is limited to a determination of whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence, or whether constitutional rights were violated. Vinglinsky v. Workmen's Compensation Appeal Board (Penn Installation), 589 A.2d 291 (Pa. Cmwlth. 1991).
First, Claimant contends that the WCJ erred when it granted Employer's Modification Petition based upon Dr. Bonner's IRE which was not performed in conformance with the Act and the Guides, because he failed to use both the DRE and range of motion models for determining impairment.
During his deposition, Dr. Bonner explained that he did not use the range of motion method because that method is used "when an impairment is not caused by an injury." Dr. Bonner Deposition at 41. The WCJ determined that "all findings and conclusions of Dr. Bonner on Ms. Weney's [Claimant's] physical condition and his calculation of an IRE of 26 percent whole body are persuasive and more credible than contrary testimony of Dr. Greene." WCJ's Decision, F.F. No. 14(a) at 7. The WCJ as the ultimate finder of fact in workers' compensation cases has exclusive province over questions of credibility and evidentiary weight, and is free to accept or reject the testimony of any witness, including a medical witness, in whole or in part. General Electric Co. v. Workmen's Compensation Appeal Board (Valsamaki), 593 A.2d 921 (Pa. Cmwlth.), petition for allowance of appeal denied, 600 A.2d 541 (Pa. 1991).
Claimant argues that Dr. Bonner's testimony was not competent because he used the DRE method, instead of the range of motion method, when he performed Claimant's IRE. Barrett v. Workers' Compensation Appeal Board (Sunoco, Inc.), 987 A.2d 1280 (Pa. Cmwlth.), appeal denied, 13 A.3d 480 (Pa. 2010).
In Barrett, Byron Barrett (Barrett) argued that the Board erred when it determined that the IRE was valid, because Dr. Bonner utilized the DRE method and not the range of motion method, which is not in conformance with the Act and the Guides. The Court noted that, during his deposition, Dr. Bonner explained why he used the DRE method when he evaluated Barrett's work-related injuries. This Court determined the IRE was valid and that Claimant "has not cited any authority to support her claim that an IRE is invalid unless the physician uses both models." Id. at 1287.
As in Barrett, Claimant failed to cite any legal authority or provide medical testimony to support her argument that an IRE is invalid where a physician used the DRE method rather than the range of motion method.
This Court concludes that the IRE was valid. Section 306(a.2) of the Act, 77 P.S. §511.2, states that the level of impairment is to be established using the most recent edition of the Guides. Here, Dr. Bonner performed a comprehensive evaluation of Claimant and explained how he rated Claimant in compliance with the Guides. Dr. Bonner Deposition at 9-12. Dr. Bonner credibly testified that Claimant was at MMI, and that pursuant to the Fifth Edition of the Guides, Claimant's whole person impairment rating, attributable to her work-related injuries, was twenty-six percent. Because Claimant's IRE rating was less than fifty percent, the WCJ properly modified Claimant's benefit status from total to partial disability. This Court will not disturb a WCJ's finding when those findings are supported by substantial evidence. Nevin Trucking v. Workmen's Compensation Appeal Board (Murdock), 667 A.2d 262 (Pa. Cmwlth. 1995).
Section 306(a.2) was added by the Act of June 24, 1996, P.L. 350, No. 57, § 4, as amended, 77 P.S. § 511.2.
Claimant also argues that Dr. Bonner failed to perform the IRE in accordance with the most recent edition of the Guides in violation of §306(a.2)(1) of the Act. Claimant's Brief at 30. This argument is without merit.
The Fifth Edition of the Guides was the most recent edition at the time of Dr. Bonner's October 29, 2007, IRE of Claimant. The Sixth Edition of the Guides was not published until December 15, 2007.
Claimant also contends that the WCJ erred when he awarded a penalty in the amount of $1,000.00 and held that Claimant did not prove that PMA Insurance Company violated the Act when it failed to pay her medical bills.
Once a workers' compensation claimant files a penalty petition, the onus is on her to establish a violation of the Act or its rules or regulations, and once that is done, the burden shifts to the employer to prove that it did not violate the Act or its rules. See Shuster v. Workers' Compensation Appeal Board (Pennsylvania Human Relations Commission), 745 A.2d 1282, 1288 (Pa. Cmwlth. 2000), appeal denied, 781 A.2d 151 (Pa. 2001). The imposition of a penalty in a workers' compensation case and the amount of the penalty to be imposed are typically left to the sound discretion of a workers' compensation judge. See City of Philadelphia v. Workers' Compensation Appeal Board (Calderazzo), 968 A.2d 841, 850 (Pa. Cmwlth.), appeal denied, 980 A.2d 609 (Pa. 2009).
In the present case, the WCJ did not abuse his discretion when he denied an award of penalties for Employer's failure to pay medical bills submitted by Claimant. Claimant failed to meet her burden of proving that Employer violated the Act when it did not pay certain medical bills. To the contrary, Mr. Weaver credibly testified that medical bills totaling $895.00 for RS Medical for orthotics with the diagnosis "brachial neuritis" were denied as not work-related. Mr. Weaver explained that Employer's workers' compensation insurance carrier "...did not receive any documentation from Dr. Park or any other provider showing they had prescribed that specific medical device." WCJ's Decision, F.F. No. 11, at 5.
Claimant failed to establish that proper medical documentation was submitted to Employer's workers' compensation insurance carrier with the medical bills.
The WCJ explained that "the actions by ShopRite [Employer] were annoying, more procedural than substantive with no indication Ms. Weney [Claimant] was deprived of medical care or cut off from benefits. A penalty of $1,000.00 is deemed equitable and just." WCJ's Decision, Discussion at 10.
The Board properly determined that the WCJ "weighed the seriousness of the violation and exercised his discretion in awarding a $1,000 penalty....The WCJ explained his Decision was based on finding Defendant's [Employer's] error to be more procedural than substantive." Board's Decision, March 12, 2014, at 9.
Accordingly, the decision of the Board is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 2nd day of December, 2014, the Order of the Workers' Compensation Appeal Board in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge