Opinion
No. 2497 C.D. 2010
06-15-2011
Salvatore Lentine, Petitioner v. Workers' Compensation Appeal Board (Sprint), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Salvatore Lentine (Claimant) petitions for review of the October 26, 2010, order of the Workers' Compensation Appeal Board (WCAB), which affirmed the decision of a workers' compensation judge (WCJ) to deny his claim petition. We affirm.
Claimant worked for Sprint (Employer) as a territory manager, where he was responsible for overseeing the Pittsburgh and upstate New York markets. Claimant's position required long periods of sitting, standing, and bending, in addition to lifting up to eighty pounds. (WCJ's Findings of Fact, No. 7.)
Claimant alleges that, on June 22, 2009, while lifting at work, he felt a pop that resulted in immediate pain in his low back, along with numbness and tingling in his right leg. On July 27, 2009, Claimant reported the incident to his supervisor; Claimant did not report the incident sooner, as he thought the pain would go away. (Id.)
Subsequent to the injury, on June 24, 2009, Claimant was provided medical services by Dr. Belletieri at St. Mary Medical Center. Dr. Belletieri referred Claimant to Bradley Fink, D.O., an orthopaedist. Claimant had a diagnostic MRI and was provided epidural injections. On October 5, 2009, Claimant underwent back surgery with Dr. Todd Albert. Currently, Claimant has low back pain that travels into his right leg, with the symptoms improving somewhat since the surgery. Claimant has been unable to perform his job with Employer, due to back and leg pain. He is unable to meet the job requirements of sitting, bending and lifting. (Id.)
On August 19, 2009, Claimant filed a claim petition alleging an injury occurred on June 22, 2009, to his low back during the course and scope of his employment. The WCJ held a hearing on September 14, 2009, and neither Employer nor a representative appeared. The WCJ scheduled a second hearing for October 5, 2009, and, again, no one appeared for Employer. At that hearing, Claimant made a motion under Yellow Freight System, Inc. v. Workmen's Compensation Appeal Board (Madarce), 423 A.2d 1125 (Pa. Cmwlth. 1981), that all well-pled allegations in the claim petition be deemed admitted, as defendant failed to file a timely answer. The WCJ did not rule on the motion but, rather, asked that all evidence be submitted by October 31, 2009. Claimant, by letter dated October 27, 2009, submitted five items for the record: Claimant's deposition, the claim petition, Claimant's medical reports/records, a schedule of litigation costs and an attorney's fee agreement. The record was closed on October 31, 2009, with Claimant submitting evidence and a brief as to the Yellow Freight motion. On November 16, 2009, Employer filed an answer to the claim petition. On December 21, 2009, the WCJ held a hearing to ascertain the reason for Employer's late filing of the answer. The reason was found unacceptable, and the WCJ granted Claimant's Yellow Freight motion and continued the matter to litigate the extent of disability.
Subsequently, the WCJ reviewed the evidence presented by Claimant and found in pertinent part as follows:
The testimony of the claimant has been reviewed and is found to be inconsistent with the history of injury given initially June 24, 2009 at St. Mary's [sic] Medical Center that the onset of back pain was approximately three days prior while lifting his child. The medical records further reveal in the June 25, 2009 progress notes of Dr. Belletieri a history of back pain lifting child, and further reveals for the first time an injury associated with work in the progress notes of July 27, 2009 the same date that he reported a work injury to his employer and five days after instructing Dr. Belletieri not to release additional information on his short-term disability. I find the Claimant's testimony to be not credible and not supportive of a Finding of Fact of a work injury on June 22, 2009.(WCJ's Findings of Fact, No. 9.) The WCJ found the medical records credible, Claimant not credible and revoked the Yellow Freight order. (WCJ's Findings of Fact, No. 10-11.) The WCJ determined that Claimant was not injured in the course and scope of his employment and dismissed Claimant's claim petition. Claimant appealed to the WCAB, which affirmed. Claimant's petition for review to this court followed.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law and whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
Claimant argues that the WCAB erred in affirming the WCJ who granted Claimant's Yellow Freight motion and then reversed that decision and denied the claim petition.
Section 416 of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §821, provides that "[i]f a party fails to file an answer and/or fails to appear in person or by counsel at the hearing without adequate excuse, the workers' compensation judge hearing the petition shall decide the matter on the basis of the petition and evidence presented." In PIAD Precision Casting v. Workers' Compensation Appeal Board (Bosco), 922 A.2d 967, 972 (Pa. Cmwlth. 2006) (citing Rite Aid Corp. v. Workers' Compensation Appeal Board (Bennett), 709 A.2d 447, 449 (Pa. Cmwlth. 1998)), this court stated that "an employer's failure to timely file an answer 'does not automatically satisfy the claimant's burden of proof.'" A claimant still "has the burden of establishing a right to compensation and proving all necessary elements to support an award in a claim petition proceeding." Id.
Claimant's claim petition, which was filed on August 19, 2009, sets forth that Claimant suffered a low back injury in the course and scope of his employment on June 22, 2009, that the injury occurred while Claimant was lifting, that Claimant gave Employer notice on July 27, 2009, and that Claimant had to stop working on June 22, 2009, and has not returned to work for Employer. (Claim Petition, at 1-2.)
Claimant also submitted additional evidence in this case, including medical records, which establish that Claimant was injured while picking up his daughter. The initial medical reports submitted into evidence by Claimant fail to contain any reference to a work-related injury. "[W]here a claimant presents additional evidence which serves to rebut the allegations in the claim petition and which is accepted by the referee, the referee must determine the weight to be accorded to all of the evidence she has accepted." Greeley v. Workmen's Compensation Appeal Board (Matson Lumber Company and Lumber Mutual Insurance Company), 647 A.2d 683, 687 (Pa. Cmwlth. 1994).
The WCJ found that the June 24, 2009, notes from St. Mary Medical Center revealed that "triage assessment performed, Pt. c/o pain right buttock radiating to right lig [sic] since Sunday; Pt. states on Sunday bent over to pick up daughter. Hx of herniated L4, L5 and S1." (WCJ's Findings of Fact, No. 8.)
In the present controversy, the WCJ did find evidence that would rebut the admitted allegations in the claim petition. Thus, the WCJ was correct in making findings and credibility determinations regarding the Claimant's allegations and evidence and did not err in revoking its Yellow Freight order once it determined the evidence did not establish a work-related injury.
As Claimant failed to meet his burden of establishing a work-related injury, we affirm the WCAB.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 15th day of June, 2011, the order of the Workers' Compensation Appeal Board, dated October 26, 2010, is hereby affirmed.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge