Opinion
No. 2272 C.D. 2010
07-01-2011
Coolbaugh Township, Petitioner v. Workers' Compensation Appeal Board (Koller), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JOHNNY J. BUTLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE PELLEGRINI
Coolbaugh Township (Employer) appeals from an order of the Workers' Compensation Appeal Board (Board) affirming the WCJ's denial of its termination petition and reversing the WCJ's granting of Employer's Suspension Petition because he found that Theodore Koller (Claimant) acted in bad faith in responding to a suitable job referral that was available and within Claimant's restrictions.
On February 20, 2006, Claimant was injured while working as a volunteer fire fighter with Coolbaugh Township Volunteer Fire Company when he was struck in the head by a co-worker's Scott pack (air tank) and sustained a concussion. At that time he was also employed by Great Wolf Lodge as an "aqua chef" or dishwasher. Pursuant to a Notice of Compensation Payable (NCP) dated March 7, 2006, Claimant began receiving workers' compensation benefits.
Section 601 of the Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §1031, extends coverage to members of volunteer fire companies.
On June 8, 2006, Employer issued a Notice of Ability to Return to Work based on a report from Paul M. Shipkin, M.D. (Dr. Shipkin), stemming from an evaluation of Claimant performed on May 8, 2006. Employer also filed a Petition for Termination and Suspension alleging that as of May 8, 2006, Claimant was fully recovered and able to return to unrestricted work, including his volunteer fire fighter duties. Employer issued another Notice of Ability to Return to Work dated July 11, 2006, as well as a letter advising Claimant that he was welcome to return to his volunteer fire fighter duties. On December 12, 2006, Employer filed another Notice of Ability to Return to Work and a Petition for Termination alleging that as of October 30, 2006, Claimant was fully recovered and able to return to unrestricted work.
Meanwhile, on July 18, 2006, Claimant filed a Claim Petition, Petition to Review Compensation Benefits and a Petition to Review Medical Treatment. Claimant alleged that the NCP contained an incorrect description of his injury and that it should include post traumatic headaches, cervical spinal injury, thoracic spinal injury, and a lumbar spinal injury, including possible bulging or herniated discs. All of the above Petitions were consolidated for hearing and decision by the WCJ.
Claimant never returned to work at the Great Wolf Lodge after his work injury.
Before the WCJ, Employer submitted the deposition testimony of Dr. Shipkin, a board certified neurologist, who testified that during his examination of Claimant on May 8, 2006, he obtained a history during which Claimant stated that he was hit on the right side of his head with an air tank. Claimant stated that he did not lose consciousness but felt dizzy and vomited on a few occasions and was taken to the emergency room. Dr. Shipkin testified that Claimant advised him he had headaches, was experiencing discomfort radiating across the right side of his head toward the back of his neck, and that he could not turn his head side-to-side or up and down. Claimant also stated that approximately a month after the work injury, he began experiencing low back discomfort. Dr. Shipkin testified that there was no physiological relationship between back pain and headaches.
Dr. Shipkin testified that he reviewed various medical records for Claimant, including medical records from Pocono Medical Center going back to April 2004, and MRI studies of Claimant's cervical spine, thoracic spine and brain. He also testified that his physical and neurological examination of Claimant was completely normal, that there were no objective findings to support Claimant's complaints, and there were findings that strongly suggested a marked amount of symptom magnification. Dr. Shipkin opined that if Claimant suffered a head concussion on February 20, 2006, he had fully and completely recovered from this work injury by the time of his May 8, 2006 examination, and he was fully capable of engaging in his pre-injury employment on a full-time basis without restrictions. Dr. Shipkin also opined that Claimant did not sustain any other injuries on February 20, 2006, other than a head concussion.
Employer also presented the deposition testimony of Robert Mauthe, M.D. (Dr. Mauthe), a physician board certified in physical medicine and rehabilitation who evaluated Claimant on October 30, 2006. Dr. Mauthe stated that he reviewed Claimant's medical records and diagnostic studies, Dr. Vegari's records, and the testimony of both Dr. Vegari and Dr. Shipkin. Dr. Mauthe obtained a history from Claimant, during which Claimant's only complaint was right-sided headaches. Claimant advised Dr. Mauthe that his work injury occurred when he got hit in the back of the head with a 50 pound air tank. Claimant indicated that after the work injury, he had some neck, upper and lower back pain, but that all of this went away and he no longer had any problems in these areas. According to Dr. Mauthe, a headache was a purely subjective complaint and there was no objective way to verify a headache. Dr. Mauthe performed a physical and neurologic examination of Claimant, both of which were normal. The only findings Claimant had were non physiologic. Dr. Mauthe opined that Claimant suffered a cerebral concussion as a result of the work injury, but that he had made a full and complete recovery from the concussion. He also opined that Claimant's headaches were not post-traumatic in nature and were not related to the trauma of February 20, 2006. According to Dr. Mauthe, the changes on Claimant's MRI were all pre-existing, degenerative changes and were in no way related to the work trauma.
Several members of the Coolbaugh Township Volunteer Fire Company also testified on behalf of Employer. Bernard Harrison, Employer's fire chief in 2006, stated that he received a doctor's release from Claimant sometime in May 2006, indicating Claimant could return to work. Mr. Harrison testified that Claimant responded to a fire call dressed in full fire gear on July 4, 2006. Michael J. Sofia, Sr., Employer's second assistant fire chief in 2006, testified that Claimant participated in a fire drill as well as a company softball game on June 19, 2006. Mr. Sofia also testified that Claimant responded to a fire call on July 4, 2006. At that time, Claimant was dressed in full turnout gear and he assisted a fellow fire fighter in gaining entry to the structure and carrying a hose. Renee N. Roach stated that she knew Claimant from the fire company, where she was a member of the fire police in 2006, and they were friends. Ms. Roach testified that Claimant told her he was going to milk his workers' compensation claim for what he could and that his lawyer told him to distance himself from the fire company.
Employer also submitted the testimony of Shawn Hoben and John Poko, both members of the Diligence Fire Company. Mr. Hoben, Diligence's Fire Chief, testified that Claimant joined his fire company in September 2006. On his application for active membership, Claimant marked "no" indicating that he did not have any physical problems or limitations and "yes" that he would attend training sessions and be able to take emergency calls. Mr. Poko, a lieutenant and vice president of Diligence Fire Company, testified that he saw Claimant personally fill out and sign the application. Both Mr. Poko and Mr. Hoben testified that Claimant actively participated in training drills, responded to fires in full gear including his Scott breathing apparatus which weighs approximately thirty-three pounds, and did everything that any other fire fighter was doing. Claimant was an active member with Diligence Fire Company until Mr. Hoben sent him a letter in March or April 2007, asking him not to attend any more calls.
Kristine Yurchak (HR Director Yurchak), Director of Human Resources at Great Wolf Lodge, testified Claimant was employed by Great Wolf Lodge as an aqua chef in February 2006. Claimant was responsible for loading the dishwasher, stacking plates and placing them in the racks. HR Director Yurchak stated that one requirement of Claimant's job was that he be able to push, pull and lift 15 pounds. According to HR Director Yurchak, the Lodge had a great need for aqua chefs and the position was available full-time, 30 to 40 hours per week at a rate of pay of $7.50 per hour. Claimant put in an application for an aqua chef position on March 28, 2007, but no action was going to be taken on his application because Claimant indicated he could not lift, push or pull more than 10 pounds. Claimant also called HR Director Yurchak and stated that his doctor told him he could not perform the duties of the aqua chef job. HR Director Yurchak testified there were inaccuracies on Claimant's application as he indicated that he had never worked for Great Wolf Lodge in the past.
Claimant testified that he became a volunteer fire fighter with Employer in February 2005, and prior to his work injury he had no problem wearing his heavy fire-fighting equipment. He also testified that prior to the February 20, 2006 incident, he was not treating with any doctors for problems relating to his neck or back and he did not have any prior injuries or accidents involving his neck or lower back. Claimant testified that the work injury occurred during a training exercise when a fellow fire fighter spun around and hit him in the head with his Scott pack. According to Claimant, he saw stars, was dizzy, and had to be helped outside. Claimant then began vomiting and was taken by ambulance to the emergency room. At the time of the work injury, Claimant was working full-time as a dishwasher at Great Wolf Lodge, but he never returned to that job.
Claimant testified that upon seeing Dr. Vegari on March 7, 2006, he complained of headaches, neck pain and low back pain. At the time of the hearing, Claimant was still treating with Dr. Vegari and testified that his head and neck still bothered him a great deal, but the pain in his back had subsided. Claimant testified that he did not believe he would be capable of performing his fire fighter duties because he could not put on the Scott pack or the Nomex hood and mask. He also believed he would not be capable of performing his job as a dishwasher because his headaches and pain would prevent him from working eight hours a day and he could not perform the turning involved in those work duties. Claimant admitted he received a Notice of Ability to Return to Work from Employer as well as the report from Dr. Shipkin. After receiving this information, Claimant attended a night drill with Employer and participated in a softball game. However, he claims that the next day he could not move and his head was hurting. Claimant denied responding to fire calls for Employer throughout the summer of 2006 but admitted that he responded to the fire on July 4, 2006, and was wearing his full fire-fighting gear. Claimant admitted that he submitted an application to become a volunteer fire fighter at the Diligence Fire Company, but claims he was only seeking social membership not active membership. He testified that he did not go to any training sessions at the Diligence Fire Company and only responded to one fire call, which occurred in January 2007. Claimant acknowledged filling out the application for the aqua chef position at Great Wolf Lodge and that he wrote on the application that he had a 10 pound weight restriction with pushing and pulling.
Dr. Vegari, a physician board eligible in neurology, testified that when he first saw Claimant on March 7, 2006, his complaints were of severe headache, neck and back pain. Claimant indicated that the work injury occurred when another fire fighter dropped a 50-pound air cylinder which struck Claimant on the right side of his face and head. Claimant was taken to the emergency room, a CAT scan was taken of his head which came back essentially negative, and he was diagnosed with a concussion. Claimant told Dr. Vegari that he had a severe, continuous headache from the time of the incident up until his examination. Based upon Claimant's physical examination and history, Dr. Vegari stated that Claimant had a cerebral concussion but he also wanted to rule out the possibility of a subdural hematoma or contusion. Dr. Vegari opined that Claimant's headache was post-traumatic, cervicogenic, and also due to displacement of the temporomandibular joint. He also stated that Claimant could possibly have herniated discs, bilateral carpal tunnel, bilateral sacroiliitis, and post traumatic sleep apnea. Dr. Vegari ordered several diagnostic studies, put Claimant in physical therapy, advised that Claimant not lift objects more than five pounds and should avoid pushing/pulling activities. Dr. Vegari believed Claimant was temporarily totally disabled.
Dr. Vegari examined Claimant again on April 12, 2006, and stated there were no changes upon physical examination. After Claimant's examination on June 15, 2006, Dr. Vegari noted that Claimant still complained of severe headaches, back pain and difficulty sleeping, but there was some improvement in Claimant's neck and back. Claimant saw Dr. Vegari's associate, Dr. Miric, on August 18, 2006, and September 15, 2006. Dr. Vegari testified that he did not believe Claimant would be capable of returning to his pre-injury job at Great Wolf Lodge because he had not recovered from his neck and back injury. He did believe Claimant could perform sedentary work with no lifting, pushing or pulling over ten pounds, but that he could not perform the job of an aqua chef.
Claimant presented the testimony of two other members of the Coolbaugh Township Volunteer Fire Company, Kelly Weimer and Alex Robles, who were present with him at the fire call on July 4, 2006.
The WCJ denied Claimant's Claim Petition and Review Petitions, finding he failed to meet his burden of proving that he suffered additional injuries other than a concussion or closed head injury as a result of his February 20, 2006 work injury. The WCJ found the testimony of Dr. Shipkin and Dr. Mauthe to be credible and persuasive and he did not find the testimony of Dr. Vegari to be credible. Therefore, the WCJ found that Claimant did not suffer work-related injuries to his neck, mid back or low back. However, the WCJ denied Employer's Termination Petitions finding Employer failed to meet its burden of proving that Claimant fully and completely recovered from his work injury because he continues to have complaints of headaches due to his concussion.
The WCJ did find that Employer met its burden of proving that Claimant was able to return to work as an aqua chef, that Claimant's pre-injury position as an aqua chef was available and within his restrictions, and that Claimant acted in bad faith in responding to the available position because he pointed out weight restrictions imposed by Dr. Vegari and his application was inaccurate because it indicated that he never previously worked for Great Wolf Lodge. The WCJ also found that Claimant had many inconsistencies in his testimony and did not find Claimant's testimony to be credible, other than his testimony regarding headaches. The WCJ found it significant that after his work injury Claimant was able to play a full softball game and responded to numerous fire calls with both Employer and the Diligence Fire Company while wearing all of his heavy fire-fighting gear. Therefore, the WCJ granted Employer's Petition for Suspension and ordered that Claimant's workers' compensation benefits be suspended as of February 21, 2007. Both Claimant and Employer appealed to the Board.
The Board rejected Employer's appeal that the WCJ erred in not granting the Termination Petitions because Claimant testified that he had ongoing headaches. The Board also rejected Employer's argument that the WCJ erred in not suspending Claimant's benefits as of June 16, 2006, when he returned to his volunteer fire fighter duties. Section 601 of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §1031, extends coverage to members of volunteer fire companies and states that a volunteer fire fighter who is injured in the line of duty is entitled to receive workers' compensation benefits based on an amount not less than the statewide average weekly wage. Claimant did not earn any wages when he returned to his duties; therefore, the Board stated that his benefits could not be suspended under Section 601 of the Act because then he would be receiving earnings less than the average statewide weekly wage.
Regarding Claimant's appeal, the Board affirmed the WCJ's decision denying Claimant's Claim and Review Petitions, which sought to add post-traumatic headaches and spinal injuries to his work-related injury description. However, it agreed with Claimant that the WCJ erred in suspending Claimant's benefits because it was not established that he acted in bad faith in applying for the aqua chef job when he stated in his application that he could not lift more than 10 pounds and he phoned HR Director Yurchak informing her that he was unable to perform the job duties based upon his doctor's orders because these statements were consistent with what Claimant was told by Dr. Vegari, his treating physician. In addition, the Board found that while Claimant failed to indicate on his application that he previously worked for Great Wolf Lodge, HR Director Yurchak was aware of this fact and stated that his omission had no bearing on her decision not to extend Claimant a job offer. This appeal followed.
Our review of a decision of the Board is limited to determining whether errors of law were made, constitutional rights were violated or whether the record supports the necessary findings of fact. Ward v. Workers' Compensation Appeal Board (City of Philadelphia), 966 A.2d 1159 (Pa. Cmwlth. 2009).
On appeal, Employer argues that the Board erred in affirming the WCJ's order denying Employer's Termination Petition because the credited medical testimony demonstrated that Claimant had fully recovered from his work-related injury and was capable of returning to his pre-injury position. According to Employer, the overwhelming credible evidence demonstrated that Claimant had fully recovered from his concussion and his headaches were unrelated to his work injury. Employer points out, the WCJ found the testimony of both Dr. Shipkin and Dr. Mauthe to be credible and persuasive. Both physicians testified, and the WCJ agreed, that Claimant's headaches were not post-traumatic, were not caused by the work injury, and that Claimant had fully recovered from his concussion. While Dr. Mauthe admitted that headaches are a subjective complaint and there is no objective test which could confirm Claimant's assertions, he also testified that Claimant's physical and neurologic exams were absolutely normal, there was no evidence of musculoskeletal impairment, and the only findings were non physiologic. While Dr. Vegari testified that Claimant's headaches were post-traumatic, the WCJ did not find Dr. Vegari's testimony to be credible.
However, Claimant argues that this evidence is insufficient to terminate benefits because we have previously held that a WCJ "can give more credence to a claimant's testimony regarding incapacitating pain than to a doctor's testimony." Victor's Jewelers v. Workmen's Compensation Appeal Board (Bergelson), 604 A.2d 1127, 1128 (Pa. Cmwlth. 1992) (quoting Hygrade Food Products v. Workmen's Compensation Appeal Board, 437 A.2d 89, 91 (Pa. Cmwlth. 1991)). Ignoring that Claimant did not testify to incapacitating pain but to headaches, in Udvari v. Workmen's Compensation Appeal Board (USAir, Inc.), 550 Pa. 319, 327, 705 A.2d 1290, 1293 (1997), our Supreme Court held "[i]n a case where the claimant complains of continued pain, this burden [in a termination proceeding] is met when an employer's medical expert unequivocally testifies that it is his opinion, within a reasonable degree of medical certainty, that the claimant is fully recovered, can return to work without restrictions and that there are no objective medical findings which either substantiate the claims of pain or connect them to the work injury. If the WCJ credits this testimony, the termination of benefits is proper."
In this case, the WCJ found Dr. Shipkin and Dr. Mauthe's testimony to be credible and persuasive that Claimant had fully recovered, could return to work without restrictions and that there were no objective medical findings which either substantiated the claims of pain or connected them to the work injury. Moreover, they testified that even if he had headaches, they were not related to his work injury and he had fully recovered. Given the WCJ's findings, the Employer met its burden for the termination of Claimant's benefits.
Accordingly, the order of the Board is reversed and Claimant's benefits are ordered terminated.
Given our findings, we need not address Employer's additional argument that the Board erred in reversing the WCJ's decision to suspend benefits based on Claimant's purported bad faith in applying for the dishwasher position at Great Wolf Lodge.
/s/_________
DAN PELLEGRINI, Judge ORDER
AND NOW, this 1st day of July, 2011, the September 21, 2010 order of the Workers' Compensation Appeal Board at No. A08-1340 is reversed and Claimant's benefits are terminated.
/s/_________
DAN PELLEGRINI, Judge