Opinion
No. 440 C.D. 2013
10-02-2013
Jack Butler, Petitioner v. Workers' Compensation Appeal Board (Com. of PA-Department of Public Welfare), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Jack Butler (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of a Workers' Compensation Judge (WCJ) granting the Petition to Terminate Compensation Benefits (Termination Petition) of the Commonwealth of Pennsylvania Department of Public Welfare (Employer). We affirm.
Claimant, who worked for Employer at Norristown State Hospital, was injured on March 3, 2005, when he was attacked by patients and pushed into a cement stanchion. (WCJ Decision, Findings of Fact (F.F.) ¶¶1, 6a-6b; October 13, 2011 WCJ Hearing Transcript (10/13/11 H.T.) at 6.) Claimant was paid temporary total disability compensation benefits for this injury pursuant to an Agreement for Compensation that described the accepted injury as a scalp contusion, concussion and right shoulder sprain. (F.F. ¶1.) In 2006, Claimant had surgery on his right shoulder for his March 2005 work injury. (F.F. ¶2.) In July 2007, Employer filed a petition to terminate or suspend Claimant's compensation benefits on the ground that Claimant had fully recovered. (Employer Exhibit 2, June 18, 2008 WCJ Decision Findings of Fact (2008 F.F.) ¶3.) In response to that 2007 petition, Claimant submitted deposition testimony of his treating orthopedist, Dr. Nevulis, who opined that Claimant had not recovered at that time from the right shoulder injury to the point that he could return to his time-of-injury job with Employer. (Employer Exhibit 2, 2008 F.F. ¶¶5, 12-13, 15.) Based on this testimony, the WCJ found that Claimant had not fully recovered from that portion of his accepted injury and denied Employer's 2007 termination petition. (Employer Exhibit 2, 2008 F.F. ¶15, Conclusion of Law ¶2 and Decision at 4.)
In the summer of 2010, Dr. Nevulis released Claimant to return to work without restrictions. (F.F. ¶6k; 10/13/11 H.T. at 14-15, 20.) On October 5, 2010, an orthopedist retained by Employer, Dr. Thomas DiBenedetto, performed an independent medical examination of Claimant and concluded that Claimant had fully recovered from his March 2005 work injury and was capable of returning to unrestricted work. (F.F. ¶¶7b, 7g; Employer Exhibit 1, DiBenedetto Dep. at 11-17, 30-31.) Claimant returned to his job with Employer without any work restrictions on February 28, 2011, and his disability benefits were accordingly suspended. (F.F. ¶6j; 10/13/11 H.T. at 13, 21-22; July 14, 2011 WCJ Hearing Transcript (7/14/11 H.T.) at 4.)
On March 3, 2011, Employer filed the instant Termination Petition asserting that as of October 5, 2010, Claimant had fully recovered from all disability related to his March 3, 2005 work injury. (F.F. ¶3.) Claimant opposed the Termination Petition, contending that he "remains significantly impaired on account of his work injury." (Answer to Termination Petition.)
On July 14, 2011 and October 13, 2011, the WCJ held hearings on the Termination Petition. Employer submitted the deposition testimony of Dr. DiBenedetto. (7/14/11 H.T. at 3; Employer Exhibit 1, DiBenedetto Dep.) Dr. DiBenedetto testified that his examination of Claimant showed that Claimant's right shoulder had normal strength, motor reflexes, and sensory function. (Employer Exhibit 1, DiBenedetto Dep. at 11-17.) Dr. DiBenedetto opined that Claimant had fully recovered from his March 2005 work injury, had no remaining disability, and had no restriction on his ability to work. (Id. at 14-17, 30-31.) Claimant testified in opposition to the Termination Petition, but did not submit any medical testimony. (F.F. ¶6; 10/13/11 H.T. at 3-25.) Claimant requested that the WCJ permit him to introduce medical evidence by written report in lieu of medical testimony, but did not submit to the WCJ any specific medical report as an offer of proof. (7/14/11 H.T. at 4-5; 10/13/11 H.T. at 3, 25.) Employer objected to introduction of medical opinion by report, and the WCJ sustained the objection. (7/14/11 H.T. at 5-6; 10/13/11 H.T. at 3, 25.) Although the WCJ offered Claimant a continuance to obtain a medical deposition after sustaining the objection, Claimant chose not to submit any medical testimony in opposition to the Termination Petition. (10/13/11 H.T. at 3, 25.)
On December 29, 2011, the WCJ granted Employer's Termination Petition. The WCJ found Dr. DiBenedetto's testimony credible and specifically rejected the testimony of Claimant as less credible to the extent that it conflicted with Dr. DiBenedetto's testimony. (F.F. ¶9.) Based on Dr. DiBenedetto's testimony, the WCJ found that "as of October 5, 2010, Claimant was fully recovered from his March 3, 2005 work injury with no further disability related to that injury." (Id.) The WCJ, accordingly, ruled that "Employer has satisfied its burden of proving that as of October 5, 2010 all disability related to Claimant's March 3, 2005 work injury ceased," that "[c]ompensation payable by Employer to Claimant for loss of wages related to [that injury] be terminated as of October 5, 2010," and that "[c]ompensation payable by Employer to Claimant for reasonable and necessary medical expenses related to Claimant's March 3, 2005 work injury should be terminated as of the date of circulation of this Decision and Order." (WCJ Decision, Conclusions of Law ¶¶2-4.)
Claimant appealed the WCJ's decision to the Board, arguing only that the WCJ had erred in ruling that he could not submit medical evidence by written report. (Claimant's Appeal from WCJ's Findings of Fact and Conclusions of Law.) The Board affirmed, holding that the WCJ properly denied Claimant's request to submit a medical report because Claimant's disability exceeded 52 weeks and the medical report was therefore inadmissible to prove disability. (Board Opinion at 2-4.) This appeal followed.
Our review is limited to determining whether an error of law was committed, whether the WCJ's necessary findings of fact are supported by substantial evidence or whether constitutional rights were violated. Weaver v. Workers' Compensation Appeal Board (State of the Art, Inc.), 808 A.2d 604, 605 n.1 (Pa. Cmwlth. 2002).
To obtain a termination of benefits under the Workers' Compensation Act (the Act), the employer must prove 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). Claimant does not challenge the WCJ's finding that Employer's evidence was sufficient to meet its burden of showing that Claimant was fully recovered and had no further disability from his work injury. The sole issue before the Court in this appeal is whether the WCJ erred in refusing to permit Claimant to introduce a written medical report to oppose Employer's Termination Petition.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
Section 422(c) of the Act provides:
Added by the Act of June 26, 1919, P.L. 642, as amended, 77 P.S. § 835. --------
Where any claim for compensation at issue before a workers' compensation judge involves fifty-two weeks or less of disability, either the employe or the employer may submit a certificate by any health care provider as to the history, examination, treatment, diagnosis, cause of the condition and extent of disability, if any, and sworn reports by other witnesses as to any other facts and such statements shall be admissible as evidence of medical and surgical or other matters therein stated and findings of fact may be based upon such certificates or such reports. Where any claim for compensation at issue before a workers' compensation judge exceeds fifty-two weeks of disability, a medical report shall be admissible as evidence unless the party that the report is offered against objects to its admission.77 P.S. § 835. The purpose of Section 422(c) is to promote efficiency in the administration of short-term benefit claims by permitting medical evidence to be introduced by the less expensive means of written report where the disability is 52 weeks or less. Weaver v. Workers' Compensation Appeal Board (State of the Art, Inc.), 808 A.2d 604, 607 (Pa. Cmwlth. 2002); Ruth Family Medical Center v. Workers' Compensation Appeal Board (Steinhouse), 718 A.2d 397, 402 n.10 (Pa. Cmwlth. 1998).
Where the claimant's disability has exceeded the length of disability set forth in Section 422(c) and the opposing party objects, medical reports cannot be introduced without supporting medical testimony to prove disability or recovery from disability. Weaver, 808 A.2d at 606-07; Young v. Workmen's Compensation Appeal Board, 395 A.2d 317, 318 (Pa. Cmwlth. 1978). Section 422(c) applies to termination petitions and bars proof by medical report alone in support of or in opposition to a termination petition where the disability has exceeded 52 weeks and the opposing party objects. Weaver, 808 A.2d at 606-07.
Section 422(c)'s 52-week limit, however, applies only where the "claim for compensation at issue before a workers' compensation judge involves ... disability." 77 P.S. § 835 (emphasis added); CVA, Inc. v. Workers' Compensation Appeal Board (Riley), 29 A.3d 1224, 1228 (Pa. Cmwlth. 2011); Ruth Family Medical Center, 718 A.2d at 402. Medical reports are therefore admissible where all disability claims total 52 weeks or less, even if the claimant's medical claims exceed the 52-week limit. Ruth Family Medical Center, 718 A.2d at 402. Medical reports are likewise admissible regardless of the length of disability, where the proceeding before the WCJ does not involve any issue of whether the claimant is disabled. CVA, Inc., 29 A.3d at 1228; Montgomery Tank Lines v. Workers' Compensation Appeal Board (Humphries), 792 A.2d 6, 11 (Pa. Cmwlth. 2002).
Here, the WCJ and Board correctly held that Claimant could not introduce medical evidence in opposition to the Termination Petition by written report without supporting medical testimony. Claimant's claim for disability compensation far exceeded 52 weeks. His disability began in 2005 and he continued receiving temporary total disability benefits until he returned to work in 2011, almost six years later. Employer objected to introduction of medical opinion by report. (7/14/11 H.T. at 6; 10/13/11 H.T. at 3.) Moreover, the issue before the WCJ involved disability. To prevail on the Termination Petition, Employer was required to prove that Claimant no longer had any disability from the work injury. O'Neill, 29 A.3d at 53; Hall, 3 A.3d at 740. Claimant opposed the Termination Petition on the grounds that he allegedly was still disabled, that he "remains significantly impaired." (Answer to Termination Petition.) Claimant therefore could not oppose the Termination Petition by medical report. Weaver, 808 A.2d at 606-07.
Claimant argues that he should have been permitted to introduce a medical report because his disability benefits had been suspended as a result of his return to work and therefore the only issue before the WCJ allegedly was Employer's obligation to pay medical expenses. This argument is without merit. Contrary to Claimant's assertion, the issue in dispute on the Termination Petition was whether Claimant had any remaining disability, not merely whether his medical expenses should be paid. While Claimant was not receiving disability benefits at the time of the WCJ hearings because of the suspension, the suspension did not terminate Employer's liability for disability payments if Claimant suffered a future loss of earnings. Weaver, 808 A.2d at 606-07. Despite the WCJ's offer that a medical report could be admissible if Claimant limited his claim (7/14/11 H.T. at 4), Claimant did not stipulate that he was no longer disabled or limit his future rights to medical benefits only, nor did he represent that the medical report he sought to introduce related solely to payment of medical expenses. To the contrary, Employer's medical evidence to which Claimant sought to respond by report was that Claimant had "no further disability related to [the work] injury," and the WCJ granted the Termination Petition based on the fact that Employer showed that Claimant was no longer disabled. (F.F. ¶9 and WCJ Decision, Conclusion of Law ¶2.)
Indeed, the very same argument that Claimant asserts here was expressly rejected by this Court in Weaver. In Weaver, as here, the claimant had returned to work at no loss of wages following a multi-year period of disability and his disability benefits had accordingly been suspended. 808 A.2d at 605. As here, the claimant argued that he should have been permitted to oppose his employer's termination petition by medical report because, as a result of the suspension, he was no longer receiving disability benefits. Id. at 606. This Court rejected that argument, holding that suspension of disability benefits did not remove the issue of disability from the case. Id. at 606-07. The Court held in Weaver that where a claimant had already received more than 52 weeks of disability benefits, his disability claim was not a short-term benefit claim even though he was not presently receiving those benefits, and upheld the WCJ's exclusion of the medical report that the claimant offered in opposition to the termination petition. Id.
None of the cases argued by Claimant support his contention that a medical report is admissible on a termination petition where the claimant has received more than 52 weeks of disability benefits. In Ruth Family Medical Center, the Court held that medical reports were admissible because claimant's only disability claim was for 49 weeks and was therefore a short-term claim under Section 422(c)'s 52-week limit. 718 A.2d at 402. In CVA and Montgomery Tank Lines, medical reports were admissible because disability was not an issue before the WCJ due to the limited nature of the proceeding or the removal of all disability claims from the case by prior stipulation. CVA, Inc., 29 A.3d at 1226, 1228 (only matter before WCJ was penalty petition for failure to pay medical expenses); Montgomery Tank Lines, 792 A.2d at 8, 11 (Pa. Cmwlth. 2002) (only issue before WCJ was employer's liability for medical expenses because all disability claims had previously been settled by stipulation and commutation).
Accordingly, the order of the Board affirming the WCJ's order granting Employer's Termination Petition is affirmed.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 2nd day of October, 2013, the order of the Workers' Compensation Appeal Board in the above matter is affirmed.
/s/_________
JAMES GARDNER COLINS, Senior Judge