Opinion
No. 1815 C.D. 2012
02-01-2013
Edward J. Siegfried and Erie Insurance Co., Petitioners v. Workers' Compensation Appeal Board (Zerbe), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Edward J. Siegfried and Erie Insurance Co., (Employer) challenges the order of the Workers' Compensation Appeal Board (Board) which affirmed the Workers' Compensation Judge's (WCJ) denial of Employer's termination petition.
On or about July 17, 2009, Chase Zerbe (Claimant) suffered a work-related injury in the course and scope of his employment as a laborer for Employer. Claimant fell into a hole he was digging at a customer's house. Employer issued a notice of compensation payable that identified Claimant's injury as "L5-S1 Lumbar sprain/strain and right shoulder contusion." Notice of Compensation Payable, January 5, 2010, at 1; Reproduced Record (R.R.) at 6a. Claimant received weekly compensation benefits of $216.00 based on an average weekly wage of $240.00.
On September 21, 2010, Employer petitioned to terminate benefits on the basis that Claimant fully recovered and was able to return to work without restrictions.
Employer presented the deposition testimony of L. Richard Trabulsi, M.D. (Dr. Trabulsi), a board-certified orthopedic surgeon. Dr. Trabulsi examined Claimant on November 20, 2009, and then again on August 27, 2010, took a history, and reviewed medical records. After the initial examination Dr. Trabulsi diagnosed Claimant with "a contusion and sprain of the right shoulder; impingement syndrome of the right shoulder with a possible glenoid labrum tear, all related to the right shoulder; and a low back sprain/strain with a lumbar radiculitis or radiculopathy." Deposition of L. Richard Trabulsi, M.D., January 19, 2011, (Dr. Trabulsi Deposition) at 12; R.R. at 122a. After the August 27, 2010, examination, Dr. Trabulsi diagnosed Claimant with "an anterior labrum tear and partial thickness undersurface rotator cuff tear of the right shoulder and the low back strain and sprain with left lumbar radiculitis." Dr. Trabulsi Deposition at 19; R.R. at 129a. Dr. Trabulsi opined that an EMG/nerve conduction study of September 8, 2009, was "absolutely not" positive for radiculopathy. Dr. Trabulsi Deposition at 20; R.R. at 130a. Dr. Trabulsi testified that Claimant was fully recovered from his work-related injuries to his back and shoulder and could return to his regular duties without restrictions. Dr. Trabulsi Deposition at 24; R.R. at 134a.
Claimant testified that with respect to his back "I don't think a day goes by that I'm not in pain. I'm having problems in the morning when I wake up even getting out of my bed." Notes of Testimony, April 27, 2011, (N.T.) at 8; R.R. at 192a. Claimant explained that he had pain in his lower back which "shoots down my left leg." He further explained that he had "a lot of tingling and vibrations and sharp pains that run down my left side of my leg." N.T. at 8; R.R. at 192a. Claimant testified that his shoulder was "horrible." N.T. at 9; R.R. at 193a. Claimant stated that he could not return to his time of injury job. N.T. at 14; R.R. at 198a. Even after shoulder surgery, Claimant could not lift his right hand above his head and experienced a "stabbing" pain in his right shoulder. N.T. at 24; R.R. at 208a.
Claimant presented the deposition testimony of Bernard I. Zeliger, D.O. (Dr. Zeliger), a board-certified orthopedic surgeon and Claimant's treating physician. After his most recent examination of Claimant on January 11, 2011, Dr. Zeliger diagnosed Claimant with a "borderline herniated disc, protruded disc, at L5-S1 on the left." Deposition of Bernard I. Zeliger, D.O., February 21, 2011, (Dr. Zeliger Deposition) at 7; R.R. at 53a. Dr. Zeliger based this diagnosis in part on an EMG dated November 2, 2010. Dr. Zeliger Deposition at 8; R.R. at 54a. Dr. Zeliger testified within a reasonable degree of medical certainty that Claimant still suffered from his work-related back injury because:
[h]e continues to have problems. He continues to have some weakness in his left foot. Orthopedic testing shows it's positive for pain in the low back and left leg. He has a positive EMG. And he has changes on the MRI. All indicative of a problem of a herniated disc in his back.Dr. Zeliger Deposition at 12; R.R. at 58a.
Claimant also presented the deposition testimony of Timothy Ackerman, D.O. (Dr. Ackerman), a board-certified orthopedic surgeon and Claimant's treating physician for his shoulder. Dr. Ackerman first treated Claimant on September 18, 2009. He diagnosed him with a "tear in his shoulder of the supraspinatus and loose bodies in need of operative intervention." Deposition of Timothy Ackerman, D.O., March 8, 2011, (Dr. Ackerman Deposition) at 5; R.R. at 88a. Dr. Ackerman explained, "At that time, I had him set up for surgery, surgery was undertaken on January 27, 2010. And his subsequent treatments have been seen in the office, physical therapy to the current date." Dr. Ackerman Deposition at 5; R.R. at 88a. Dr. Ackerman opined that Claimant continued to have some minor pain with respect to his shoulder. Dr. Ackerman wanted to have Claimant undergo a functional capacity evaluation (FCE), but Claimant could not perform the FCE because of his back. As a result, Dr. Ackerman could not give an opinion regarding recovery of Claimant's right shoulder injury. Dr. Ackerman Deposition at 6; R.R. at 89a. Dr. Ackerman returned Claimant to light duty work with respect to his shoulder on October 4, 2010. Dr. Ackerman Deposition at 7; R.R. at 90a.
After the close of the record, but before the WCJ rendered his decision, Employer's counsel, Joshua A. Gray (Attorney Gray), wrote to the WCJ and requested that the WCJ "reopen the record . . . due to evidence received after the close of the record." Letter from Joshua A. Gray, August 29, 2011, at 1; R.R. at 217a. After receiving the letter the same day by facsimile transmission, Claimant's attorney, Carolyn M. Anner, also requested that the record be reopened and that a status conference be held in light of new medical evidence. Letter from Carolyn M. Anner, August 29, 2011, at 1; R.R. at 219a. The evidence to which Attorney Gray referred was an office progress note from Dr. Ackerman dated May 5, 2011, which indicated that while Claimant had some bicipital tendinitis in the shoulder, Dr. Ackerman believed that Claimant had reached maximum medical improvement and released him to full duty work with respect to his shoulder. Office Note from Dr. Ackerman, May 5, 2011, at 1; R.R. at 320a.
The WCJ did not respond to the request. The WCJ denied the termination petition:
The employer bears a considerable burden of proving that Claimant's disability has ceased and that any current disability is unrelated to Claimant's work-related injury. The undersigned Judge finds that the Claimant's demeanor suggests that he is credible. The undersigned Judge finds that Dr. Bernard Zeliger's testimony was based on objective evidence and that he is more credible than Dr. Trabulsi. Dr. Trabulsi only saw the Claimant on two occasions. Dr. Ackerman performed surgery on Claimant and, therefore, his testimonial evidence is more credible than that of Dr. Trabulsi's.WCJ's Decision, August 31, 2011, (Decision) at 5-6; R.R. at 276a-277a.
Dr. Trabulsi does not perform surgery and has not done so since 2002. However, Dr. Trabulsi does establish a reasonable basis for the contest of this matter by the Defendant [Employer]. Both Dr. Zeliger and Dr. Ackerman based their testimony on objective evidence and are deserving of the more credible expert designation.
Employer appealed to the Board which affirmed.
Employer contends that the Board erred when it affirmed the WCJ's denial of the termination petition where Dr. Trabulsi testified that Claimant was fully recovered from his accepted injury and Dr. Zeliger opined that Claimant had not fully recovered because he had a herniated disc. Employer also contends that the WCJ erred when it did not permit Employer to submit evidence obtained after the close of the record which indicated that Dr. Ackerman believed that Claimant was fully recovered from the work-related shoulder injury.
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).
Initially, Employer contends that the Board erred when it affirmed the WCJ's denial of the termination petition where Dr. Trabulsi testified that Claimant was fully recovered from the injuries listed on the notice of compensation payable.
The employer bears the burden of proof in a termination proceeding to establish that the work injury has ceased. In a case where the claimant complains of continued pain, this burden is met if 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. Udvari v. Workmen's Compensation Appeal Board (USAir, Inc.), 550 Pa. 319, 327, 705 A.2d 1290, 1293 (1997).
Here, Dr. Trabulsi testified that Claimant fully recovered from his work-related shoulder and back injuries and could return to work without restriction. However, the WCJ did not find Dr. Trabulsi credible. 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, 529 Pa. 626, 600 A.2d 541 (1991). This Court will not disturb a WCJ's findings when those findings are supported by substantial evidence. Nevin Trucking v. Workmen's Compensation Appeal Board (Murdock), 667 A.2d 262 (Pa. Cmwlth. 1995).
Because the WCJ did not accept Dr. Trabulsi's testimony, Employer failed to meet his burden to establish that he was entitled to a termination of benefits. Normally, that would end this Court's inquiry. However, Employer argues that the WCJ made his credibility determinations based on his implicit, though not express, amendment of Claimant's injuries to include a disc herniation.
In Westmoreland County v. Workers' Compensation Appeal Board (Fuller), 942 A.2d 213 (Pa. Cmwlth. 2008), Westmoreland County petitioned to terminate the workers' compensation benefits of Mary Fuller (Fuller). In a notice of compensation payable, Fuller's injury was identified as a lumbar strain. The workers' compensation judge denied the petition to terminate. The workers' compensation judge credited the testimony of Fuller's medical experts that Fuller had a herniated L4-5 disc and post-traumatic lumbar radiculopathy that were caused by her work injury. The workers' compensation judge did not formally amend the notice of compensation payable to include the herniated disc and radiculopathy. Westmoreland County did not appeal this determination. Approximately five years after Westmoreland County filed the termination petition, it filed a second termination petition and alleged that Fuller was fully recovered from her work injury. Westmoreland County's medical expert testified that Fuller had fully recovered from the work injury which consisted of the lumbar sprain. A different workers' compensation judge granted the termination petition. Fuller appealed to the Board which vacated the termination and remanded to afford Fuller the opportunity to present further testimony. Westmoreland County, 942 A.2d at 214-215.
On remand, the Bureau of Workers' Compensation reassigned the termination petition to the original workers' compensation judge. The original workers' compensation judge determined based on her disposition of the first termination petition that Fuller's injuries included a herniated disc and post-traumatic lumbar radiculopathy at L-5. She dismissed the petition and determined that Westmoreland County's medical expert did not establish that Fuller was fully recovered from her work-related injury because he did not testify that Fuller was fully recovered from the herniated L4-5 disc or the radiculopathy. Westmoreland County appealed to the Board which affirmed. Westmoreland County, 942 A.2d at 215-216.
Westmoreland County petitioned for review with this Court. One of the issues Westmoreland County raised was whether the workers' compensation judge erred when she determined that the decision on the prior termination petition expanded the scope of the recognized work injury to include a herniated L4-5 disc and lumbar radiculopathy. Westmoreland County, 942 A.2d at 216.
This Court found no error on the part of the workers' compensation judge and affirmed as Westmoreland County had failed to establish that Fuller was fully recovered from the additional injuries stated in the disposition of the first termination petition:
[E]ven though the NCP [notice of compensation payable] was not formally amended, once the WCJ found in the first termination petition that Claimant [Fuller] suffered a herniated L4-5 disc and lumbar radiculopathy, those became accepted injuries. Indeed, in Gillyard [v. Workers' Compensation Appeal Board (Pennsylvania Liquor Control Board), 865 A.2d 991 (Pa. Cmwlth.)], petition for allowance of appeal denied, 584 Pa. 703, 882 A.2d 1007 (2005)], we held that where the WCJ's findings in a termination petition were based on non-recovery from work injuries not accepted in the NCP [notice of compensation payable], those injuries became part of the accepted injury. To prevail in a later termination petition the employer had to establish the claimant recovered from those injuries. Essentially, we held that by denying a termination petition based on injuries not accepted in the NCP [notice of compensation payable], the WCJ implicitly amended the notice under Section 413 of the Act [Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended] to include the injuries as part of the NCP [notice of compensation payable].Westmoreland County, 942 A.2d at 217-218.
Here, the WCJ found that Claimant did not fully recover from his work-related injuries which included an L5-S1 disc "protrusion that borders on a herniation." Decision, Finding of Fact No. 25 at 3; R.R. at 274a. The WCJ made this determination based on the credible testimony of Dr. Zeliger regarding the possible herniation. As in Westmoreland County, the WCJ implicitly amended the notice of compensation payable to include the additional injury. The Board did not err when it affirmed the denial of the petition.
Employer next contends that the Board erred when it failed to address the WCJ's failure to reopen the record to consider the office note of Dr. Ackerman which stated that Claimant was fully recovered from the work-related shoulder injury.
Section 131.101(c) of the Special Rules before Judges, 34 Pa. Code §131.101(c), provides:
The evidentiary record is closed when the parties have submitted all of their evidence and rested or when the judge has closed the evidentiary record on a party's motion or the judge's own motion. If the judge determines that additional hearings are necessary, or that additional evidence needs to be submitted, or if the judge schedules additional written or oral argument, the evidentiary record may be held open by the judge. When the judge determines that the evidentiary record is closed, the judge will notify the parties that the evidentiary record is closed on the record or in writing.
Here, the record was closed. Employer requested that the record be reopened due to evidence received after the close of the record, though Employer did not indicate in his letter to the WCJ the nature of the acquired evidence. As the Special Rules state, the WCJ has the authority to hold open a record. However, the Special Rules do not state that the WCJ must accede to the request of a party to reopen or hold open the record. Further, Employer does not cite to any regulation, statute, or case law, which states that a WCJ must reopen a record to accept after acquired evidence. The WCJ did not abuse his discretion when he did not respond to Employer's request.
Employer also states that the Board should have addressed this issue. While the Board did not address it, such an error, if there was error, was harmless. Further, the Board was under no obligation to remand the case to the WCJ for an additional hearing as Employer suggests. --------
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 1st day of February, 2013, the order of the Workers' Compensation Appeal Board in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge