Opinion
No. 1300 C.D. 2011
04-18-2012
Chidi F. Iwuoma, Petitioner v. Workers' Compensation Appeal Board (Pittsburgh Steelers Sports, Inc.), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Chidi F. Iwuoma (Claimant) seeks review of the June 15, 2011 order of the Workers' Compensation Appeal Board (Board) affirming the Workers' Compensation Judge's (WCJ) grant of Claimant's claim petitions, and reversing the award of attorney's fees for an unreasonable contest. The sole issue for this Court's review is whether the Board erred when it reversed the WCJ's award of attorney's fees. We affirm.
Claimant was employed as a professional football player with Pittsburgh Steelers Sports, Inc. (Employer) from October 2002 to September 2006, and from December 2006 to September 2007. On August 20, 2005, Claimant sustained a work injury to his left shoulder during a pre-season game. Employer's trainer and medical staff provided treatment to Claimant. As a result of his injury, Claimant missed two weeks of practice and games, but was able to finish the season. Post-season, Claimant underwent shoulder surgery by Employer's orthopedic surgeon. Thereafter, Claimant continued to experience pain in his left shoulder. On August 31, 2006, Claimant suffered a concussion and lost consciousness during a game while employed by Employer. On September 6, 2006, Claimant was advised that he was being released by Employer in favor of other players who could contribute more favorably.
This was the third concussion Claimant sustained while employed by Employer, and the fourth of Claimant's career. Because the WCJ found the concussions to have been repetitive trauma, the WCJ determined September 2, 2007 (Claimant's last day worked with Employer) to be the date of injury for the concussions.
Claimant tried out for several other teams. He was signed by the New England Patriots for a four-week period, and was subsequently signed by the St. Louis Rams for a three-week period. On December 4, 2006, Claimant was re-signed by Employer. During his first game after returning to Employer, Claimant sustained a significant injury to his left wrist and was placed on Injured Reserve. On December 19, 2006, Claimant underwent wrist surgery. On February 1, 2007, in a second procedure, pins were removed from Claimant's wrist. Claimant thereafter began rehabilitation for his wrist.
According to the testimony of Kevin Colbert, Employer's Director of Operations, Claimant's placement on Injured Reserve meant that Claimant could not play the rest of the season, but that his contract was maintained.
On March 15, 2007, Claimant re-signed with Employer. In mini-camp, he aggravated his left shoulder and began rehabilitation with Employer's trainers. During that time, his activities were significantly limited due to his work injuries. In the team's first pre-season game of 2007, Claimant aggravated his wrist injury. Thereafter, Claimant missed one pre-season game, but was able to play in the remaining pre-season games, and participate in training camp. On September 3, 2007, Employer terminated his contract as part of the final cut of training camp. Thereafter, between September and December 2007, Claimant tried out for several professional football teams, including the Tampa Bay Buccaneers, the Cincinnati Bengals, the New York Jets, and the Tennessee Titans. He was signed by the Tennessee Titans on December 26, 2007. He played in two games for the Tennessee Titans. On February 28, 2008, Claimant's contract with the Titans expired, and he was not asked to re-sign.
On August 1, 2008, Claimant filed a claim petition alleging that he sustained a left shoulder injury on August 20, 2005, in the course and scope of his employment with Employer. He filed a second claim petition on that same date, alleging that he sustained a left wrist dislocation and a scapholunate ligament injury on September 2, 2007, in the course and scope of his employment with Employer. On December 12, 2008, Claimant filed a third claim petition alleging that he had sustained concussions and/or closed head injuries on September 2, 2007 from repetitive trauma to the head in the course and scope of his employment with Employer. On May 13, 2009, Claimant filed the fourth claim petition alleging that he sustained a scapholunate ligament tear in his left wrist, with perilunate dislocation on December 17, 2006. Each claim petition requested payment of Claimant's medical bills, disability benefits and attorney's fees.
A hearing was held on October 6, 2008 before the WCJ, at which Claimant testified that he still had pain in his shoulder, that his left wrist did not have full range of motion and that his grip was weak. He further testified that he continued to have nagging pain in his wrist, and that since his concussion on August 31, 2006, he had experienced sleep disturbances, headaches, and poor memory.
Claimant also presented three medical witnesses. Employer's team physician, James P. Bradley, M.D. (Dr. Bradley), testified that he treated Claimant following his August 20, 2005 left shoulder injury. Dr. Bradley diagnosed Claimant with an acute-on-chronic strain of the infraspinatus and teres minor. He performed Claimant's post-season shoulder surgery on February 16, 2006, and instituted a structured rehabilitation program. Dr. Bradley also initially treated Claimant's December 2006 wrist injury. He then referred Claimant to Glenn A. Buterbaugh, M.D. (Dr. Buterbaugh), who performed Claimant's wrist surgery. As team physician, Dr. Bradley followed Claimant after his wrist surgery and testified that "he did well . . . we were getting ready for him to play again." Bradley Notes of Deposition Testimony, December 4, 2008 (Bradley N.T.) at 18. However, Claimant reinjured his wrist on August 18, 2007, and was released shortly thereafter. That was the last time Dr. Bradley saw him.
Dr. Buterbaugh testified that he performed surgery on Claimant's wrist on December 19, 2006, to correct multiple torn ligaments. On February 1, 2007, in a second procedure, Dr. Buterbaugh removed pins from Claimant's wrist. Dr. Buterbaugh testified that although Claimant regained some use of his wrist, he continued to experience pain, weakness and limited range of motion in his wrist. It was his opinion that, as of July 2007, Claimant could participate in football but he would have limited range of motion in his left wrist. Claimant would be at risk for re-injury and rapid arthritic degenerative changes in his wrist if he returned to football.
Claimant also submitted the reports of Claude S. Munday, Ph.D. (Dr. Munday). The reports revealed that Dr. Munday examined Claimant on November 6, 2008 in reference to Claimant's loss of consciousness during a game on August 31, 2006. Based on the medical history provided by Claimant, Dr. Munday concluded that Claimant had sustained prior concussions, but the August 2006 concussion was the most significant. Dr. Munday also concluded that Claimant "clearly has some memory and mental flexibility difficulties at the high end of the spectrum. . . . It is quite apparent that these difficulties are due to the multiple concussions." Certified Record (C.R.), January 23, 2009 Report of Claude S. Munday, Ph.D.
Employer offered the testimony of Steven E. Kann, M.D. (Dr. Kann), who testified that he had examined Claimant on October 7, 2008, and determined that one of Claimant's left wrist ligaments was incompetent, which resulted in decreased range of motion and reduced grip strength. Dr. Kann found no abnormalities with Claimant's left shoulder and released Claimant to play professional football.
On August 27, 2010, the WCJ issued a decision concluding that Claimant had met his burden of establishing work-related injuries to his left shoulder, and left wrist and sustained multiple concussions. The WCJ awarded disability benefits as of September 2, 2007, Claimant's final day of work with Employer. The WCJ also awarded Claimant attorney's fees, holding that Employer's contests were unreasonable, since Employer's own medical staff and trainer had provided treatment to Claimant, and thus, was aware of Claimant's injuries and had found them to be work related. Employer appealed the award of attorney's fees to the Board. By order dated June 15, 2011, the Board determined that the WCJ erred when it concluded that Employer's contest was not reasonable and reversed the WCJ's award of attorney's fees. Claimant appealed to this Court.
"The propriety of the imposition of attorney's fees for an unreasonable contest is a question of law subject to plenary review by the Board and this Court." Grady v. Workers' Comp. Appeal Bd. (Lutz), 26 A.3d 1229, 1231 n.3 (Pa. Cmwlth. 2011).
Claimant argues that the WCJ properly awarded attorney's fees because Employer was aware of Claimant's injuries but contested the claim petitions. We disagree. Section 440(a) of the Pennsylvania Workers' Compensation Act (Act) provides in relevant part:
Act of June 2, 1915, P.L. 736, as amended, added by Section 3 of the Act of February 8, 1972, P.L. 25, 77 P.S. § 996(a).
In any contested case where the insurer has contested liability in whole or in part . . . the employe . . . in whose favor the matter at issue has been finally determined in whole or in part shall be awarded, in addition to the award
for compensation, a reasonable sum for costs incurred for attorney's fee . . . Provided, That cost for attorney fees may be excluded when a reasonable basis for the contest has been established by the employer or the insurer.Pursuant to Section 440 of the Act, an award of attorney's fees to a prevailing claimant is mandatory, unless the employer can establish a reasonable basis for its contest. Bell's Repair Serv. v. Workers' Comp. Appeal Bd. (Murphy, Jr.), 850 A.2d 49 (Pa. Cmwlth. 2004). "An employer's contest is reasonable if the contest was brought to resolve a genuinely disputed issue, not merely to harass the claimant." Jordan v. Workers' Comp. Appeal Bd. (Phila. Newspapers, Inc.), 921 A.2d 27, 42 (Pa. Cmwlth. 2007).
To be eligible for workers' compensation benefits, a claimant must establish both that he suffered a work-related injury and that the injury resulted in disability. Jordan. "Disability is synonymous with loss of earning power." Ginyard v. Workers' Comp. Appeal Bd. (City of Phila.), 733 A.2d 674, 676 (Pa. Cmwlth. 1999). At the June 29, 2009 hearing before the WCJ, Employer acknowledged that it was not contesting that Claimant suffered work-related injuries, and in fact, demonstrated that it had paid for medical treatment for Claimant's injuries. Employer did, however, challenge that Claimant suffered disability after the injuries. This Court has previously found employer contests to be reasonable where the employer has reasonably questioned whether work-related injuries resulted in disability. See, e.g., Hurst v. Workers' Comp. Appeal Bd. (Preston Trucking Co.), 823 A.2d 1052 (Pa. Cmwlth. 2003); Ginyard.
In the instant matter, the WCJ found Claimant and Claimant's witnesses, Dr. Bradley and Dr. Buterbaugh, to be credible. Notably, Dr. Bradley and Dr. Buterbaugh testified that Claimant was medically capable of playing professional football, although each acknowledged that Claimant's level of performance would likely be affected by his injuries. Dr. Bradley explicitly stated, "when we saw him the last time, I felt he could continue to play football." Bradley N.T. at 34. Dr. Buterbaugh also testified that there was nothing in his examinations of Claimant through October 6, 2008 that indicated Claimant could not play professional football. Buterbaugh Notes of Deposition Testimony, December 1, 2008 (Buterbaugh N.T.) at 33. In addition, Dr. Munday concluded that "I basically think it is unwise for [Claimant] to put himself at further risk. However, I would not unilaterally medically preclude [Claimant] from returning to the playing field if that was the course he wished to pursue." C.R. at April 21, 2009 Supplemental Report of Claude S. Munday, Ph.D. Further, Claimant's own testimony established that he attended workouts with at least four professional football teams after September 2, 2007, and that he, in fact, played professional football with the Tennessee Titans for two games in December 2007. The record establishes that through December 2007, even Claimant believed he could play professional football. It was only after he played with the Titans that Claimant came to believe he could not. Given the evidence presented, we conclude that Claimant's disability as of September 2, 2007 was a genuinely disputed issue and, thus, Employer's contest was reasonable.
"The WCJ is the ultimate factfinder and has exclusive province over questions of credibility and evidentiary weight." Univ. of Pa. v. Workers' Comp. Appeal Bd. (Hicks), 16 A.3d 1225, 1229 n.8 (Pa. Cmwlth. 2011).
Employer's medical witness, Dr. Kann, also concluded that Claimant could play professional football. However, the WCJ found Dr. Kann's testimony only to be credible with regard to his conclusions that Claimant sustained injuries to his left shoulder and wrist in the course of his employment with Employer, that Claimant had reduced range of motion, and that continued exercise, practice and performance would accelerate arthritis in Claimant's wrist. --------
For the reasons set forth above, the Board's order is affirmed.
/s/_________
ANNE E. COVEY, Judge Judge McGinley did not participate in the decision in this case.
ORDER
AND NOW, this 18th day of April, 2012, the June 15, 2011 order of the Workers' Compensation Appeal Board is affirmed.
/s/_________
ANNE E. COVEY, Judge