Opinion
No. 36 C.D. 2012
08-10-2012
Aero Energy and Federated Rural Electric Insurance Exchange, Petitioners v. Workers' Compensation Appeal Board (Gunnett, Sr.), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Petitioners, Aero Energy and Federated Rural Electric Insurance Exchange, petition for review of the order of the Workers' Compensation Appeal Board (Board), affirming the decision of the Workers' Compensation Judge (WCJ) to deny a petition to terminate workers' compensation benefits and reversing the WCJ's decision to suspend the benefits of Claimant, Kenneth Gunnett, Sr. We affirm.
On December 11, 2006, Claimant sustained a work-related spine and groin injury when he fell through a cat walk and landed straddling a steel L-beam in the course of his employment as a truck driver with Aero Energy (Employer). He immediately experienced back pain, hip and leg pain, neck pain and testicular pain. Claimant reported the accident immediately, but did not seek medical treatment until two days later. Claimant was treated at Hanover Hospital - Hanover Works for injuries including low back pain, neck pain and blood in the urine. Claimant also treated with his family physician, Dr. Thaddeus Lekawa.
Employer accepted Claimant's injury and issued a Notice of Compensation Payable on February 27, 2007. Petitioners filed petitions to review medical treatment, review benefits, suspend benefits, and terminate benefits on August 9, 2007. On June 24, 2008, WCJ Christina Tarantelli, at the request of the parties, ordered that the petitions to review medical treatment, review benefits, and suspend benefits be withdrawn. The termination petition was then reassigned to WCJ Benedict. Following several hearings and the submission of medical depositions, the WCJ denied the termination petition, but ordered a suspension of Claimant's indemnity benefits.
Before the WCJ, Claimant testified that when he landed on the beam he immediately felt "bad pain in my right leg and hip, and my neck and basically my testicles." Gunnett Notes of Testimony (N.T.) at 9; Reproduced Record (R.R.) at A57. Claimant further testified that after his surgeries he experienced a general achiness in his back and testicles, but not the leg weakness or shocking pain that he had experienced since his work accident. Gunnett N.T. at 18, 27; R.R. at A66, A75. He also admitted that Dr. Lekawa occasionally prescribed opioid pain medication to him for preexisting aches and pains in his back from the late 1990s through the time of his accident. Claimant did not believe that his symptoms have returned to his pre-injury level. He stated that he was in a car accident in 2008 and suffered a concussion, but that injury did not affect his back.
Claimant also testified that he passed Employer's pre-employment physical and the examinations administered by the Pennsylvania Department of Transportation, which are required in order to maintain a commercial drivers' license.
Claimant submitted the deposition testimony of Dr. Lekawa, who is board-certified in family medicine and has treated Claimant since he was a teenager. Dr. Lekawa primarily testified regarding Claimant's groin injury. Prior to the work-related accident, he saw Claimant on a monthly basis for diabetes and high blood pressure. Claimant also complained of significant low back pain for which Dr. Lekawa prescribed opioid medication. Dr. Lekawa first examined Claimant after the work-related accident on December 20, 2006. Dr. Lekawa's examination of Claimant revealed hematuria, blood in the urine. Dr. Lekawa referred Claimant for an MRI of the spine. On January 18, 2007, Lekawa noted that the blood in the urine was either a result of a tear in the urethra or some prostate injury secondary to the fall on a beam. On January 25, 2007, he referred Claimant to Dr. Donlin Long, chief of neurosurgery at Johns Hopkins. Dr. Lekawa testified that since the work accident Claimant has continued to report back, groin and leg pain and blood in the urine, which Dr. Lekawa diagnosed as related to the peroneal injury caused by the work accident. Dr. Lekawa stated that although Claimant complained of pain in his testicles five days before the work-related accident, blood in the urine and testicular pain are unrelated. He also testified that if he had found that Claimant's back condition was serious prior to the work-related accident, he would have referred him to a specialist. Dr. Lekawa opined that Claimant had not recovered from the work-related groin injury.
Claimant also submitted the deposition testimony of Dr. Long, who had treated him for his previous work-related injury. Dr. Long operated on Claimant's lumbar spine in 1991 for a L5-S1 disc protrusion, in 1992 for a reherniation and in 1995 for a third disc herniation accompanied by incontinence. From 1995 through 1999, Dr. Long followed up periodically with Claimant, who received pain management treatment from Dr. Marco Papagallo, a neurologist at Johns Hopkins. Dr. Long testified that he examined Claimant's 2007 MRI and found a relatively new disc herniation at L4-5 and that the prior abnormalities, which he had previously treated, were stable. Dr. Long noted that Claimant's symptoms were consistent with an L4 nerve root and L4-5 disc herniation. Dr. Long referred Claimant to Dr. Randy Davis, another neurosurgeon at Johns Hopkins, for evaluation for a possible spinal fusion.
As of the date of Dr. Long's deposition, Claimant had not undergone surgery because he suffered from both diabetes and cardiac disease and he was deemed a poor candidate for surgery.
Dr. Long testified that Dr. Davis, after reviewing a CT scan of Claimant's back, had found a pars fracture at L4-5. He noted that a pars fracture would be a very typical reason to have back pain. Dr. Long also reviewed a February 2009 MRI and found a posterior bulge of the disc at L4-5 affecting both the L4 and the L5 nerves and a lateral disc herniation at L3-4 with a disc bulge resulting in neuroforaminal narrowing. Dr. Long stated that Claimant's symptoms fit well with his subjective complaints of pain. Dr. Long opined that Claimant's lumbar lesion injury was consistent with the mechanism of injury as described by Claimant. He also opined that Claimant's lumbar spine condition was both a new condition and material aggravation of preexisting condition. He stated that Claimant had previous degenerative disc disease of which he had been having symptoms. However, the L4-5 disc herniation was new and the "aggravation occurred through a development of a new injury." Long N.T at 24; R.R. at A304. Dr. Long testified that he disagreed with the injury description of "lumbar strain/sprain." Id. Dr. Long opined that Claimant had not fully recovered from his work-related injury, he was unlikely to recovery without surgical intervention and unlikely to improve spontaneously. On cross-examination, Dr. Long admitted Claimant's complaints of low back pain, medial groin pain and testicular pain expressed from 1995 through 1999 were the same kind of complaints he voiced following the 2006 work-related injury. Dr. Long also admitted that Claimant reported a sharp jolting pain in back and legs after his car was struck by a school bus in September of 1998.
Petitioners submitted the deposition testimony of Dr. William J. Beutler, a board-certified neurosurgeon. Dr. Beutler conducted independent medical examinations (IME) of Claimant on July 12, 2007, and October 7, 2008. Dr. Beutler opined that Claimant suffered a lumbar strain as a result of the fall at work, from which he was fully recovered, and did not require any further medical treatment or physical restrictions. Dr. Beutler testified that all the leg symptoms and back symptoms experienced by Claimant pre-dated his work-related injury. Dr. Beutler stated that he based his opinion on the fact that Claimant currently complained of pain in his low back and right leg but he did not complain of right leg pain immediately after the accident. Dr. Beutler also stated that Claimant "has the same set of complaints in the same distribution right leg that he had before the accident in December of 2006." Beutler N.T. at 45; R.R. at A182. Finally, Dr. Beutler stated that Claimant did not have new symptoms on the right side correlating with the new disc herniation found by Dr. Long. Dr. Beutler opined that Claimant's pre-existing medical condition was failed low back syndrome.
Petitioners also submitted the testimony of Dr. John Belis, a board-certified urologist. On August 7, 2008, Dr. Belis saw Claimant at Petitioners' request regarding microscopic hematuria. Dr. Belis reviewed Claimant's medical records because Claimant declined to allow Dr. Belis to perform a physical examination or additional tests as he had recently been examined at Johns Hopkins. Dr. Belis testified that in his opinion Claimant's hematuria was unrelated to his work injury because Claimant did not immediately complain of blood in his urine, the urinalysis at the time of injury did not show blood, an x-ray and intravenous pyelogram were normal, and an ultrasound did not show any damage to Claimant's testicles, scrotum or urethra. Dr. Belis opined that there was no connection between Claimant's work-related injury and the hematuria and that there is nothing from a urologic standpoint preventing Claimant from working in any capacity. Dr. Belis noted that it was common for patients to have blood in the urine on a daily basis as a result of benign hematuria. Dr. Belis stated that diabetes could also result in a finding of blood and protein in the urine.
In his decision and order, the WCJ concluded the evidence of record did not support Claimant's full recovery from the injuries sustained in the work-related accident because he may be in need of additional medical treatment as a result of his injury. The WCJ further concluded that Claimant's disability resulting from the work-related injury had ceased and that any residual disability is attributable to his preexisting medical conditions. The WCJ stated that Claimant's work-related injury is no longer a substantial contributing factor to his disability and that he has returned to his baseline condition prior to the work-related injury. WCJ's Decision at 19; Finding of Fact No. 7. The WCJ accepted as credible Claimant's testimony that he may continue to require additional medical treatment as a result of his work-related injury. The WCJ accepted, in part, Dr. Lekawa's and Dr. Long's testimony regarding Claimant's need for additional medical treatment for his work injury, but rejected their opinions where they conflicted with the opinions of Dr. Belis and Dr. Beutler. He accepted Dr. Long's opinion that Claimant's condition is "attributable to both a material aggravation of his pre-existing condition and degenerative processes, the latter of which is non-work related." Id. at 20; Finding of Fact No. 7. The WCJ accepted Dr. Beutler's opinion that Claimant was no longer disabled from employment as of July 12, 2007, and rejected as less credible Dr. Long's opinion that Claimant continued to be disabled. The WCJ also rejected Claimant's assertion that his disability from work and his need for continuing medical treatment were exclusively attributable to the work-related injury. Accordingly, the WCJ denied the termination petition and suspended Claimant's benefits. Both parties appealed to the Board.
The Board held that the WCJ had not erred in denying the petition to terminate benefits. The Board concluded that Petitioners had not met their burden because the WCJ had accepted Dr. Long's and Dr. Lekawa's opinion that Claimant required additional treatment for his work injury and consequently was not fully recovered. The Board also determined that the "WCJ rejected the opinions of Dr. Beutler and Dr. Belis that Claimant had fully recovered from his work injuries, which rendered [Petitioners] unable to meet [their] burden." Board's Opinion at 10.
The Board held that the WCJ erred in suspending Claimant's benefits. The Board concluded that a suspension of benefits requires a showing of job availability or earning power, but that the record does not contain any evidence supporting either. Relying upon Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987), and Wells v. Workers' Compensation Appeal Board (Skinner), 990 A.2d 176 (Pa. Cmwlth. 2010), the Board stated that absent extreme circumstances of total and permanent disability due to non-work-related conditions that would render a showing of job availability absurd and fruitless, an employer must prove that it has offered the employee a specific, available job within his vocational and medical capabilities or establish the employee's earning power through a labor market survey. The Board concluded that credible evidence of record does not support a conclusion that Claimant is so totally and permanently disabled that a showing of job availability is absurd or fruitless. Finally, the Board rejected both parties' arguments that the WCJ's decision was not reasoned. This appeal followed.
Petitioners argue that the Board erred when it failed to conclude that the termination petition should have been granted. Petitioners argue that Claimant's disability benefits should have terminated because the WCJ found that (1) Claimant has returned to his pre-injury baseline condition; (2) his disability due to the work injury ceased; and (3) and the work injury does not constitute a substantial contributing factor to his ongoing disability require a conclusion that the termination petition should have granted.
An employer petitioning to terminate workers' compensation benefits bears the burden of proving either that the employee's disability has ceased or that any current disability arises from a cause unrelated to the employee's work injury. Campbell v. Workers' Comp. Appeal Bd. (Antietam Valley Animal Hosp.), 705 A.2d 503 (Pa. Cmwlth. 1998). A termination of benefits is granted only when a work-related disability ceases entirely, unlike a suspension which is appropriate when a medical disability exists but does not manifest itself in a loss of earning power. Weber v. Workmen's Comp. Appeal Bd. (Bristol Twp. Levittown Fairless Hills Rescue Squad), 605 A.2d 460, 461-62 (Pa. Cmwlth. 1992). Additionally, the WCJ, as the ultimate fact finder, has exclusive province over any questions of credibility and evidentiary weight, and is free to accept or reject the expert testimony of a medical witness, in whole or in part. Riggle v. Workers' Comp. Appeal Bd. (Precision Marshall Steel Co.), 890 A.2d 50, 57 (Pa. Cmwlth. 2006).
The WCJ concluded that Claimant had returned to his baseline condition and that his work-related injuries did not constitute substantial contributing factors to any ongoing disability. However, these findings are limited by the WCJ's acceptance as credible the testimony of Claimant and Drs. Long and Lekawa that he may require additional medical treatment as a result of the work-related injuries he sustained. As long as Claimant may require future medical care for work-related injuries, a termination resulting in the cessation of both indemnity and medical benefits is not appropriate.
Petitioners also assert that the Board erred in reversing the WCJ's suspension of benefits because by doing so the Board impermissibly disturbed the WCJ's factual findings that Claimant's disability resulting from the work injury had ceased and that he had returned to his baseline.
In order to suspend disability benefits, an employer is required by Kachinski to demonstrate a change in the claimant's medical condition and a referral to an open job within the claimant's abilities. Nonetheless, this Court and the Pennsylvania Supreme Court have held that an employer was not required to demonstrate job availability where the claimant was completely disabled from work as a result of non-work related injuries or medical conditions. See Schneider, Inc. v. Workers' Comp. Appeal Bd. (Bey), 560 Pa. 608, 747 A.2d 845 (2000) (noting that Kachinski guidelines remain the proper standard to seek a suspension of benefits and that the guidelines may only be ignored where a showing of job availability would be fruitless or absurd); USX Corp. v. Workmen's Comp. Appeal Bd. (Hems), 647 A.2d 605 (Pa. Cmwlth. 1994) (holding that a showing of job availability was not required as a non-work-related brain abscess completely disabled claimant); Carpentertown Coal & Coke Co. v. Workmen's Comp. Appeal Bd. (Seybert), 623 A.2d 955 (Pa. Cmwlth. 1993) (holding that employer need not show job availability where claimant had recovered from a work-related heart attack, but was disabled by preexisting coronary artery disease). In Wells, this Court, relying upon Schneider, clarified that employer is relieved of a showing of job availability in obtaining a suspension of benefits only when such a showing would be absurd or fruitless. 990 A.2d at 181. This Court held that although the claimant in Wells, who had recovered from his work-related back injury, was significantly impaired by non-work related heart problems, poor circulation, and diabetes, these impairments did not automatically entitle the employer to a suspension of benefits without a showing of job availability. Id. at 180-81.
The Supreme Court, in Kachinski, set forth the following guidelines to govern employers' petitions seeking to modify or suspend an employee's benefits:
1. The employer who seeks to modify a claimant's benefits on the basis that he has recovered some or all of his ability must first produce medical evidence of a change in condition.
2. The employer must then produce evidence of a referral (or referrals) to a then open job (or jobs), which fits in the occupational category for which the claimant has been given medical clearance, e.g., light work, sedentary work.
3. The claimant must then demonstrate that he has in good faith followed through on the job referral(s).
4. If the referral fails to result in a job then claimant's benefits should continue.
The Board did not disturb the WCJ's credibility determinations with regard to Dr. Beutler's testimony concerning the cessation of Claimant's work-related disability and return to baseline. Rather, the Board's reversal of the suspension of benefits was based on Petitioners' failure to make a showing of job availability, or to prove that Claimant was completely disabled by his non-work related injuries.
For all the foregoing reasons, we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 10th day of August, 2012, the order of the Workers' Compensation Appeal Board is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge
Kachinski, 516 Pa. at 252, 532 A.2d at 380.