Opinion
No. 1879 C.D. 2012
04-30-2014
William Master, Petitioner v. Workers' Compensation Appeal Board (Laminators, Inc.), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
William Master (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) denying his request to reopen the record and affirming the decision of a workers' compensation judge (WCJ) that denied his claim petition for medical benefits under the Workers' Compensation Act (Act). We reverse and remand.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
On June 17, 2009, Claimant sustained an injury to his left shoulder rotator cuff while working as an assembler for Laminators Inc. (Employer). On July 1, 2009, Employer issued a Notice of Compensation Denial denying that Claimant suffered a work-related injury and alleging that it had not received any medical documentation to support Claimant's claim of a work-related injury.
On August 29, 2009, Claimant filed a claim petition for medical benefits in which he alleged that he suffered a work-related injury in the nature of teninopathy in the supraspinatus and infraspinatus tendons of the left shoulder rotator cuff and that his injury resulted from constant repetition of movements required in performing his work duties. Claimant only sought to recover the $9,993.50 he incurred in medical bills. Employer filed an answer denying all of the material allegations raised in the petition.
In a claim petition proceeding, the claimant bears the burden of establishing all of the elements to support an award. Inglis House v. Workmen's Compensation Appeal Board (Reedy), 535 Pa. 135, 141, 634 A.2d 592, 595 (1993). The claimant must prove that he sustained a work-related injury and, when there is no obvious causal connection between the injury and the alleged work-related cause, unequivocal medical evidence is necessary to establish that connection. Degraw v. Workers' Compensation Appeal Board (Redner's Warehouse Markets, Inc.), 926 A.2d 997, 1000 (Pa. Cmwlth. 2007).
Section 422(c) of the Act, added by the Act of June 26, 1919, P.L. 642, as amended, 77 P.S. §835, provides that sworn reports can 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...." Section 422(c) applies where, as here, the claimant is only seeking the award of medical benefits. Joy Global, Inc. v. Workers' Compensation Appeal Board (Hogue), 876 A.2d 1098, 1104 (Pa. Cmwlth. 2005).
On November 12, 2009, at a hearing before the WCJ, Claimant testified that on June 17, 2009, he was required to feed plywood through a feeder and roll coater which required lifting heavy panels used to make signs at shoulder height and above. On the day of his injury, Claimant stated that he was working with a co-worker who was not doing his share of the lifting which required a greater burden on Claimant to shift the material. During that day, he began to feel pain in his left shoulder and treated himself that night with Ben-Gay. He stated that he thought nothing of it at the time because his body hurt all the time with this kind of heavy work.
Claimant stated that the following morning, he could not lift his left arm more than eight inches from his side. He testified that he promptly informed his foreman, went to the doctor, and told Employer that he thought that it was work-related. He stated that Employer referred him to a panel list of providers for work injuries and, as a result, he went to Grand View Hospital where he underwent an x-ray and MRI. Claimant testified that he saw Dr. Regina Lee (Dr. Lee), who ordered physical therapy. He stated that he was never out of work, but he was on light-duty for several weeks before returning to his regular-duty job. He testified that he later found out that Employer was not paying the medical bills he incurred at Grand View Hospital for the x-ray and MRI, the physical therapy ordered by Dr. Lee, and the bills for his initial examination. At the conclusion of the hearing, the WCJ told Claimant's counsel to produce medical evidence by January 15, 2010; Employer was ordered to produce medical evidence by February 15, 2010; and the parties were directed to file briefs by March 15, 2010.
An independent medical examination (IME) was performed on Claimant by Noubar Didizian, M.D. (Dr. Didizian) after Claimant's January 15, 2010 deadline to produce medical evidence in support of his claim petition. On March 12, 2010, Employer filed a brief asking the WCJ to dismiss Claimant's petition for failing to produce medical evidence as directed.
Claimant contends that he was examined by Dr. Didizian on January 18, 2010, three days after he was ordered to produce medical evidence in support of his claim petition. However, Employer contends that Dr. Didizian examined Claimant on February 12, 2010, 28 days after Claimant was ordered to produce medical evidence in support of his claim petition.
On March 16, 2010, a conference call was conducted by the WCJ at Claimant's request in which he sought an order directing Employer to produce Dr. Didizian's IME report. The WCJ denied Claimant's request, but extended his deadline until May 15, 2010, to produce medical evidence in support of his claim petition and to file a brief.
Section 131.61 of the Special Rules of Administrative Practice and Procedure Before Workers' Compensation Judges (Special Rules), 34 Pa. Code §131.61, sets forth when and how information shall be exchanged between the parties. Section 131.13(m) of the Special Rules, 34 Pa. Code §131.13(m), provides for sanctions that the WCJ may impose when the parties do not exchange information as required.
On June 23, 2010, after Claimant had failed to submit either medical evidence or a brief in support, the WCJ issued a decision denying his claim petition. The WCJ also concluded that while "the claimant's testimony is entirely credible, no medical evidence whatsoever has been produced to either describe the injury or to relate it to the claimant's employment. Consequently, the Claim Petition must be denied." (WCJ 6/23/10 Decision at 5). The WCJ also concluded that "[t]he injury is not obvious." (Id.). Accordingly, the WCJ issued an order denying the claim petition.
Claimant was ultimately examined by Evelyn Witkin, M.D. (Dr. Witkin), on June 18, 2010, and Claimant's counsel received Dr. Witkin's report on July 6, 2010. While Claimant attached Dr. Witkin's report as an appendix to his appellate brief, the report cannot be considered by this Court in disposing of this appeal because it is not part of the certified record. See B.K. v. Department of Public Welfare, 36 A.3d 649, 657 (Pa. Cmwlth. 2012) ("An appellate court is limited to considering only those facts that have been duly certified in the record on appeal. For purposes of appellate review, that which is not part of the certified record does not exist. Documents attached to a brief as an appendix or reproduced record may not be considered by an appellate court when they are not part of the certified record.") (citations omitted).
Claimant appealed to the Board, alleging "that Employer failed to conduct a proper investigation and referred Claimant to medical facilities overseen by physician assistants without securing an opinion of causation by a licensed physician." (Appeal from WCJ's Findings of Fact and Conclusions of Law at 1). Claimant asked the Board to reopen the record "as Claimant has secured medical evidence to support his claim." (Id.). He also alleged that "the WCJ erred in not ordering Employer to produce a report after Claimant attended an IME at Employer's request," and that "the matter was unreasonably contested for the stated reasons above." (Id.).
The Board rejected Claimant's request to reopen the record and his allegation that the WCJ erred in denying his claim petition, stating:
Claimant was first given a deadline of January 2010 to produce medical evidence, which was then extended to May 2010. Thus, from the filing of the Claim Petition, Claimant had nine months in which he could have obtained the opinion of an expert as to his injury and its relation to his work. He did not do so and such evidence is of the type that could have been obtained at trial by reasonable diligence. Claimant could have obtained the opinion of his own expert, or could have requested the records directly
from the panel physician who treated him to submit while the case was still open, and he did neither despite having ample time to do so. We cannot say that the report Claimant now seeks to submit can be characterized as after discovered evidence simply because Claimant was not examined until after the close of the record and after the WCJ issued his opinion when Claimant's deadline to submit such evidence was already once extended by the WCJ. We cannot agree that there was an abuse of discretion by the WCJ regarding the acceptance of evidence in these circumstances.(Board Opinion at 5). Accordingly, the Board affirmed the WCJ's decision (id. at 6) and Claimant filed this appeal.
Our review is limited to determining whether errors of law were made, constitutional rights were violated, and whether necessary findings of fact are supported by substantial evidence. Ward v. Workers' Compensation Appeal Board (City of Philadelphia), 966 A.2d 1159, 1162 n.4 (Pa. Cmwlth.), appeal denied, 603 Pa. 687, 982 A.2d 1229 (2009).
Claimant argues that the Board abused its discretion in denying his request to reopen the record to submit the report of Dr. Witkin. Specifically, Claimant asserts that the Board erred in applying Cudo v. Hallstead Foundry, Inc., 517 Pa. 553, 539 A.2d 792 (1988), in disposing of the request to reopen the record. We agree.
Section 419 of the Act states, in pertinent part:
The board may remand any case involving any question of fact arising under any appeal to a [WCJ] to hear evidence and report to the board the testimony taken before
him or such testimony and findings of fact thereon as the board may order....77 P.S. §852.
A request for remand to the WCJ pursuant to Section 419, accompanied by supporting evidence, constitutes the equivalent of a petition for rehearing pursuant to Section 426 of the Act. Puhl v. Workers' Compensation Appeal Board (Sharon Steel Corp.), 724 A.2d 997, 1000 n.4 (Pa. Cmwlth. 1999). In ruling on such a petition, the Board should exercise its discretion "upon cause shown," and order a remand for the reception of evidence where the interests of justice necessitate that result. Cudo, 517 Pa. at 557, 539 A.2d at 794; Puhl, 724 A.2d at 1001-02.
Section 426 of the Act provides, in pertinent part:
The board, upon petition of any party and upon cause shown, may grant a rehearing of any petition upon which the board has made an award or disallowance of compensation or other order or ruling, or upon which the board has sustained or reversed any action of a [WCJ]....77 P.S. §871.
As this Court has previously noted:
[T]here is "cause shown" for the Board to grant a rehearing when there has been ineffective counsel, Bickel v. Workmen's Compensation Appeal Board (Williamsport Sanitary Authority and Hartford Insurance Group), [538 A.2d 661 (Pa. Cmwlth. 1988)]; where the Board has misapplied the law in light of a subsequent court decision, Babcock and Wilcox Construction Co., Inc. v. St. John, [408
A.2d 915 (Pa. Cmwlth. 1979)]; and when a party has not been given an opportunity to present a case or when newly discovered evidence can be produced, General Woodcraft and Foundry v. Workmen's Compensation Appeal Board (Besco), [318 A.2d 385 (Pa. Cmwlth. 1974)].Chadwick v. Workmen's Compensation Appeal Board (Benjamin Franklin Hotel), 573 A.2d 652, 654-55 (Pa. Cmwlth.), appeal denied, 527 Pa. 604, 589 A.2d 694 (1990) (emphasis added).
While we understand that the WCJ and the Board have to insure that claim petitions are handled expeditiously, a rehearing should have been ordered in this case because the negligence of Claimant's counsel should have been evident to the Board and caused an incomplete record upon which to assess the merits of Claimant's claim petition. Claimant's counsel concedes that he could have obtained a medical opinion within the timeframe that the WCJ allowed, but claims that he was somehow misled by Employer's actions into believing that Employer would voluntarily pay the requested medical benefits after receiving the IME report. (See Brief for Petitioner at 13). Counsel offered no evidence before the Board to support that proposition. In any event, if counsel was misled and did not offer medical evidence, he was ineffective; and if he was not mislead, he was ineffective because he did not timely file any medical reports. Either course of action is not a reasonable strategy in seeking the award of medical benefits through Claimant's claim petition. Because there was ineffective counsel in this case, the Board should have granted a rehearing. See Bickel, 538 A.2d at 663 ("Mindful that the Act's provisions are remedial in nature and are to be liberally construed, we are of the opinion that the Board abused its discretion when it did not order a rehearing to give the [claimant] an opportunity to show that medical evidence was available which was not presented due to his counsel's negligence. If the Board is satisfied that those are the true circumstances, it then shall proceed to redetermine the [claimant]'s claim in light of that evidence.").
As the burdened party, Claimant has to meet both his burden of production and his burden of persuasion to prevail on his claim for medical benefits. Crenshaw v. Workmen's Compensation Appeal Board (Hussey Copper), 645 A.2d 957, 963 (Pa. Cmwlth. 1994).
Claimant makes several other arguments. First he argues that the WCJ abused his discretion in failing to order Employer to produce Dr. Didizian's IME report that was purportedly withheld in violation of Section 131.61 of the Special Rules. Even assuming that the IME report should have been disclosed, that does not excuse Claimant's failure to provide medical evidence as ordered which was the reason why the WCJ and the Board denied the request to reopen the record. Claimant also argues that the WCJ erred in not finding that the injury was obvious and in granting the claim petition after finding Claimant's testimony credible. However, this claim has been waived for purposes of appeal because Claimant did not raise it in his appeal to the Board, and it will not be considered for the first time in this appeal. Pa. R.A.P. 1551(a); Trigon Holdings, Inc. v. Workers' Compensation Appeal Board (Griffith), 74 A.3d 359, 365 (Pa. Cmwlth. 2013). --------
Accordingly, the Board's order is reversed and the matter is remanded to the Board with directions to remand to a WCJ to consider Dr. Witkin's report and to determine whether Claimant's injury was work-related and whether Employer was obligated to pay for the medical expenses incurred after Employer referred Claimant to a panel physician for treatment.
/s/_________
DAN PELLEGRINI, President Judge Judge Simpson concurs in the result only. ORDER
AND NOW, this 30th day of April, 2014, the order of the Workers' Compensation Appeal Board dated September 5, 2012, at No. A10-1254, is reversed and the matter is remanded to the Board with directions to remand to the workers' compensation judge to consider the report of Evelyn Witkin, M.D., and to determine whether William Master's injury was work-related and whether Laminators, Inc. was obligated to pay for the medical expenses incurred after it referred William Master to a panel physician for treatment.
Jurisdiction is relinquished.
/s/_________
DAN PELLEGRINI, President Judge