Opinion
No. 2330 C.D. 2011
07-23-2012
Courtland Mitchell, Petitioner v. Workers' Compensation Appeal Board (City of Pittsburgh and UPMC Work Partners Claims Management), Respondents
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Courtland Mitchell (Claimant) petitions for review of the Order of the Workers' Compensation Appeal Board (Board) that affirmed a Workers' Compensation Judge's (WCJ) decision granting the City of Pittsburgh's (Employer) Petition to Terminate Compensation Benefits (Termination Petition), and denied Claimant's Petition for Review of the Utilization Review (UR) Determination. On appeal, Claimant argues that the Board erred because: (1) Employer did not meet its burden to prove that a change in Claimant's condition occurred after Employer had signed a December 27, 2007 Agreement for Compensation for Disability or Permanent Injury (Agreement); (2) that certain findings of fact are not supported by the record; and (3) the treatment evaluated by the UR was reasonable and necessary. For the following reasons, we affirm.
We have consolidated and re-ordered Claimant's arguments.
On April 10, 2006, Claimant sustained an injury to his back while throwing heavy paper into a truck in the course of his employment with Employer. Claimant returned to work on April 18, 2006, but began losing time again on May 24, 2006. Claimant filed a Claim Petition for Workers' Compensation Benefits dated February 26, 2007. (Claim Petition, R.R. at 4a-5a.) In support of his Claim Petition, Claimant testified in a May 30, 2007, deposition as follows: (a) he had a prior injury to his lower back in 1998, but had returned to full duty following the 1998 injury; (b) he underwent two to three weeks of physical therapy in 2004, but received no other treatment for his low back until the 2006 injury; (c) Thomas Painter, M.D., his primary care physician, told him he had degenerative disc disease; and (d) he saw Dr. Painter every three months for a checkup and underwent an MRI, whereupon Dr. Painter prescribed Ibuprofen and referred Claimant to Dr. Lee, a specialist, who did not recommend surgery. (WCJ Decision, September 1, 2010 (WCJ Decision), Findings of Fact (FOF), ¶¶ 1, 10.)
On December 27, 2007, while the Claim Petition was pending, Employer and Claimant entered into the December 27, 2007, Agreement. (FOF ¶ 1; Agreement, R.R. at 80a.) The Agreement acknowledged that Claimant sustained a work-related injury to his lower back on April 10, 2006, described as a "lumbosacral strain," and that Claimant would receive payment of temporary total disability benefits as a result of the injury. Claimant withdrew his Claim Petition after entering into the Agreement. (FOF ¶¶ 1, 2.)
On April 10, 2008, Employer filed the Termination Petition alleging that Claimant was fully recovered from his April 10, 2006, work-related injury and able to return to unrestricted work as of August 6, 2007, based upon the opinion of J. William Bookwalter, III, M.D., and requested supersedeas. (FOF ¶ 3; Termination Petition, R.R. at 89a-91a.) In response, Claimant denied that he had fully recovered from his work injury, alleged that he continued to treat for it, and that he could not perform his regular duty job of trash pick-up or recycling. (Answer, R.R. at 92a-94a.)
On September 29, 2009, Employer filed a UR Request for all chiropractic treatment provided to Claimant by his chiropractor, Peter Peduzzi, D.C. (Provider), from August 17, 2009, into the future. Kevin Emmons, D.C., performed the UR and issued a determination, dated November 18, 2009, in which he concluded that Dr. Peduzzi's treatment would not be reasonable and necessary after December 5, 2009. (FOF ¶ 9.) On December 11, 2009, Claimant and Dr. Peduzzi filed a Petition for Review of the UR Determination.
The WCJ issued a Decision and Order granting Employer's Termination Petition and denying Claimant's Petition for Review of UR Determination. The WCJ found that Claimant was fully recovered from his work injury as of August 6, 2007, and terminated his benefits as of that date. (WCJ Decision, Conclusions of Law (COL) ¶ 4.) The WCJ further found that Claimant's medical treatment with Dr. Peduzzi was unreasonable and unnecessary after December 5, 2009. (COL ¶ 9.) Claimant appealed to the Board.
The Board affirmed, holding that Employer met its burden of proving that Claimant's disability had ceased or that any disability suffered was no longer a product of a compensable injury as of August 6, 2007. The Board explained that the WCJ accepted Dr. Bookwalter's unequivocal medical opinion that Claimant was fully recovered from his work injury that included the lumbosacral strain, and that Dr. Bookwalter's testimony was substantial, competent evidence to support a termination of Claimant's benefits. In response to Claimant's argument that a termination was not appropriate because Employer failed to prove a change in Claimant's condition after the date of the December 27, 2007, Agreement, the Board explained that the date an Employer accepts an injury does not preclude the termination of benefits as of a date that predates that acceptance, citing City of Philadelphia v. Workers' Compensation Appeal Board (Butler), 24 A.3d 1120, 1127 (Pa. Cmwlth. 2011), petition for allowance of appeal denied, ___ Pa. ___, 37 A.3d 1197 (2012). The Board noted that the Agreement only acknowledged that Claimant was disabled as of May 24, 2006, and, therefore, Employer was only obligated to show a change in Claimant's condition after that date—not the date the Agreement was actually issued—pursuant to Lewis v. Workers' Compensation Appeal Board (Giles & Ransome, Inc.), 591 Pa. 490, 919 A.2d 922 (2007). (Board Op. at 6.) Additionally, the Board noted that the WCJ credited Dr. Emmons' testimony that Claimant's medical treatments with Dr. Peduzzi after December 5, 2009 were unreasonable and unnecessary, and rejected Dr. Peduzzi's testimony to the contrary. Finally, the Board determined that, because the WCJ granted a termination of benefits as of August 6, 2007, the issue of whether Claimant's treatment after December 5, 2009, was reasonable and necessary became moot. (Board Op. at 8.) Claimant now petitions this Court for review.
Citing Bradel v. Department of Labor & Industry, 469 A.2d 720 (Pa. Cmwlth. 1984), the Board noted that Claimant also challenged miscellaneous findings as not supported by substantial evidence, but the Board did not need to address such challenges because they essentially amounted to attacks on the WCJ's credibility determinations or related to ancillary facts, none of which had direct relevance to the WCJ's ultimate conclusions. (Board Op. at 5 n.1.)
"Our review is limited to determining whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence and whether constitutional rights were violated." Moberg v. Workers' Compensation Appeal Board (Twining Village), 995 A.2d 385, 388 n.1 (Pa. Cmwlth. 2010).
Claimant first argues that, in order to terminate benefits, Employer had to prove that a change in Claimant's condition occurred after the date of the December 27, 2007, Agreement and that Employer did not do so, citing Beissel v. Workmen's Compensation Appeal Board (John Wannamaker, Inc.), 502 Pa. 178, 465 A.2d 969 (1983). In Beissel, the claimant, slipped and fell at work on May 16, 1975. The claimant was hospitalized three times in 1976 for lower back and hip pain, and surgery was performed in an attempt to relieve the pain. There were medical reports indicating that the claimant's back problems were related to her fall in May 1975 and, on February 7, 1977, Employer filed a Notice of Compensation Payable (NCP) acknowledging a lower back injury. Two years later, the employer filed a termination petition alleging that the claimant's condition was unrelated to the May 16, 1975, injury. The WCJ granted a supersedeas and a hearing was held. Despite the employer's acknowledgement in the NCP, the WCJ found that the evidence of record showed that the claimant's symptoms began ten days prior to her hospital admission in 1976, after she sustained a coughing and laughing incident while playing cards, and were not work related. The WCJ, therefore, terminated compensation as of June 22, 1979, the date of the supersedeas. The Board and this Court affirmed on appeal. The claimant appealed to the Supreme Court, which reversed the finding that the injury was not work related and held that, even if the NCP had been issued incorrectly, the employer could not re-litigate its acknowledgment of the work-related injury in the NCP through a termination petition. The Supreme Court stated that, "[t]o hold otherwise would afford the employer an opportunity to litigate that which it has already admitted." Beissel, 502 Pa. at 185, 465 A.2d at 972.
Here, however, the Board found that Butler, not Beissel, was applicable. In Butler, this Court addressed whether benefits may be terminated or modified where the evidence proves that the claimant's disability resolved before the employer issued an NCP. The claimant in Butler was injured in a work-related car accident on September 28, 1995, and suffered a series of sprains and bruises. On October 19, 1995, the employer's doctor examined the claimant and found her to be fully recovered. Not finding objective evidence to support the claimant's continued complaints of head and back pain, the employer's doctor sought a second opinion and referred the claimant to another physician who examined her and concurred that she was fully recovered. On November 7, 1995, the employer issued an NCP acknowledging that the claimant had suffered a work injury on September 28, 1995, described as bruises to the neck, back and head, and providing for a weekly compensation rate. The next month the employer filed a termination petition asserting that the claimant had fully recovered as of October 20, 1995. On the basis of the medical evidence, the WCJ found that the claimant was fully recovered as of October 20, 1995. After appeals, reversal, and remand, the WCJ again found that the claimant did not suffer any residual effects of her work injury and was capable of returning to work. After another appeal, the Board held that the employer was required to show that claimant's physical condition had improved after the date the NCP was issued.
On appeal to this Court, the employer in Butler argued that the Board misapplied Beissel, and that the employer had proven what it was required to prove—that the claimant was recovered and able to work. The question presented was how the date of an NCP impacts an employer's ability to terminate or suspend a claimant's benefits. We noted that Beissel established that the employer is bound by the contents of its own NCP and, absent fraud, cannot later repudiate its acceptance of liability for a work injury pursuant to its NCP. However, in Butler, the employer sought only to prove that the claimant had fully recovered from the work injury described in the NCP and did not seek to repudiate the NCP itself. In that case, the NCP did not state that the claimant remained disabled as of the date of the NCP. We expressed concern that employers would be discouraged from issuing NCPs if doing so would foreclose any proof of a claimant's recovery prior to the date of the NCP. "[I]t does not advance sound policy, or any provision of the [Workers' Compensation] Act to have the date of an NCP's issuance stand as an absolute barrier to a termination of benefits for a claimant who is fully recovered." Butler, 24 A.3d at 1126-27.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501- 2708.
Here, Claimant's injury was accepted as work related in the December 27, 2007 Agreement, as it was accepted as work related in the NCP in Butler. This allowed Claimant to receive wage loss benefits for the April 10, 2006, disabling work injury. The Agreement did not state that Employer considered Claimant to still be disabled on the date of the Agreement. We note, as we did in Butler, that had the Agreement contained such a statement, the outcome here might be different. Id. at 1126.
Claimant argues that he was disadvantaged because he withdrew his Claim Petition after entering into the Agreement. However, even if Claimant had not withdrawn the Claim Petition, Claimant would have continued to bear the burden of proving that his disability continued throughout the pendency of the Claim Petition proceeding wherein Claimant has the burden of proving all elements of a claim, including the duration of disability. Here, the evidence credited by the WCJ includes documents that placed Claimant on notice that Dr. Bookwalter believed Claimant had fully recovered from the April 10, 2006, work injury and was capable of returning to full-duty work as of August 6, 2007. These documents include the October 19, 2007, Physician's Affidavit of Recovery and the November 2, 2007, Notice of Ability to Return to Work. Moreover, in acknowledging the work-related injury of a lumbosacral strain to the lower back as of April 10, 2006, the Agreement acknowledged that Claimant missed work from April 12, 2006, through April 18, 2006, and began losing time again on May 24, 2006. As in Butler, Employer's Termination Petition did not attempt to re-litigate Claimant's work injury of April 10, 2006, but sought to terminate benefits as of the date of full recovery from that work injury and to show that any present complaints reported by Claimant were not related to that injury. Therefore, in accordance with Butler, Employer did not have to prove that Claimant's condition changed after the December 27, 2007 Agreement.
Claimant alludes to the Agreement as a "settlement," but this is disputed by Employer, who notes that, at all times on and after the October 19, 2007 Physician's Affidavit of Recovery, Employer made clear that it was of the belief that Claimant had fully recovered from his work injury as of August 6, 2007. We agree that the Agreement did not settle this matter. The duration of Claimant's disability remained an issue in this case and Claimant's decision to withdraw his Claim Petition did not "settle" the duration of the disability, but functioned as an acceptance by Employer of the April 10, 2006, work-related injury as described in the Agreement.
See Innovative Spaces v. Workmen's Compensation Appeal Board (DeAngelis), 646 A.2d 51, 54 (Pa. Cmwlth. 1994) (noting that the burden of proof in a claim petition rests on the claimant to demonstrate not only that he has sustained a compensable injury, but also that the injury continues to cause disability throughout the pendency of the claim petition).
In a termination petition, the employer must prove either that the claimant's disability has ceased or that any current disability arises from a cause unrelated to the claimant's work injury. Jones v. Workers' Compensation Appeal Board (Pennsylvania Power and Light), 735 A.2d 185 (Pa. Cmwlth. 1999).
Next, Claimant cites GA & FC Wagman, Inc. v. Workers' Compensation Appeal Board (Aucker), 785 A.2d 1087 (Pa. Cmwlth. 2001), to support his argument that Employer could not meet its burden of proof regarding Claimant's full recovery because Dr. Bookwalter did not render an opinion that Claimant had fully recovered from the "lower back" "lumbosacral strain" acknowledged in the Agreement when the Physician's Affidavit of Recovery referred to Claimant's injury as an "aggravation of degenerative disc disease." In Wagman, "[t]he medical evidence presented by [e]mployer . . . [wa]s inconsistent with the NCP" and it was, therefore, "impossible for [the doctor] to give an opinion that Claimant ha[d] fully recovered from that injury." Id. at 1092. But here, the medical evidence was consistent with the Agreement, providing that Claimant suffered a lumbosacral strain to the lower back. Dr. Bookwalter credibly testified that there was no disc herniation on the 2006 MRI and that Claimant's lumbosacral strain that occurred on April 10, 2006 caused a temporary aggravation of the underlying disc disease, which fully resolved as of August 6, 2007. Therefore, these facts distinguish this case from Wagman.
Claimant's 1998 Supplemental Agreement for Compensation for Disability or Permanent Injury describes Claimant's September 4, 1998 work-related injury as a "herniated disc L5-S1." (Certified Record, Employer's Ex. E.)
Dr. Bookwalter testified, based upon his review of the treatment records from April 2006, that Claimant
strained his back on April 10th. Often, it will take 6 to 12 weeks for a strain to resolve. And he had repeated complaints of pain over the space of about six weeks after the event. And at that point in time, he was told he had a degenerative problem and was told to seek help with his primary-care physician. My interpretation of these films is that he definitely aggravated his pre-existing degenerative dis[c] disease. He had some continued symptoms, which is not surprising. But clearly, the man that I saw on August 6, 2007, about 16 months after his event, had clearly resolved. He had . . . absolutely no findings. And it is not unheard of for an acute exacerbation of degenerative dis[c] disease to resolve."(Bookwalter Dep., September 8, 2008, at 38-39, R.R. at 161a-62a.)
Claimant next argues that the WCJ's adoption of Employer's Proposed Findings of Fact and Conclusions of Law resulted in none of Claimant's facts/issues being addressed or considered, certain findings of fact not being supported by the record, and erroneous conclusions of law. Claimant sets forth the evidence he believes the WCJ ignored and contends that the WCJ should have accepted the opinions and reports of his medical experts over that of Employer's expert.
As noted by the Board, a WCJ may adopt a party's proposed findings of fact as long as substantial evidence supports the findings. Dillon v. Workers' Compensation Appeal Board (City of Philadelphia), 853 A.2d 413, 421 (Pa. Cmwlth. 2004). In addition, we agree with the Board that Claimant's arguments essentially challenge the WCJ's credibility determinations and ancillary facts having no relevance to the ultimate legal conclusions in this case. However, it is beyond this Court's purview to reweigh the evidence and make new credibility determinations.
"The authority of the [WCJ] over questions of credibility, conflicting medical evidence, and evidentiary weight is unquestioned." Sherrod v. Workmen's Compensation Appeal Board (Thoroughgood, Inc.), 666 A.2d 383, 385 (Pa. Cmwlth. 1995). "The Supreme Court of this Commonwealth has also made clear the principle that the appellate role is not to reweigh evidence or to review the credibility of witnesses." Bethenergy Mines, Inc. v. Workmen's Compensation Appeal Board (Skirpan), 531 Pa. 287, 293, 612 A.2d 434, 437 (1992). As a "reviewing court [we] must simply determine whether, upon consideration of [the] evidence as a whole, the [WCJ's] findings have requisite measure of support in the record" and our "appellate role is not to reweigh the evidence or to review the credibility of the witnesses." Id. (Citations omitted.) "Hence, appellate review must focus on whether there is rational support in the record, when reviewed as a whole, for the agency action . . . and findings of fact will be overturned only if they are arbitrary and capricious." Id. at 292, 612 A.2d at 437.
The WCJ extensively summarized the testimony of Claimant and the deposition testimony and opinions of Drs. Bookwalter, Peduzzi, and Emmons. The WCJ made specific credibility determinations in favor of Dr. Bookwalter and against Claimant and Dr. Peduzzi. Moreover, the WCJ provided an objective basis for those credibility determinations. Accordingly, viewing the record as a whole, we conclude that the WCJ's necessary findings are supported by substantial, competent evidence of record. Thus, we do not find any error in the granting of the Termination Petition.
The WCJ must articulate the objective basis for the credibility determinations made in considering conflicting medical deposition testimony. Daniels v. Workers' Compensation Appeal Board (Tristate Transport), 574 Pa. 61, 78, 828 A.2d 1043, 1053 (2003). Here, the WCJ found Dr. Bookwalter more credible and persuasive than Dr. Peduzzi because Dr. Bookwalter has greater qualifications, including that he "is a licensed medical doctor with a Board certification in neurosurgery, who has maintained an active clinical practice since 1980" in the care of conditions of the spine, whereas "Dr. Peduzzi is a licensed chiropractor, who has been in practice only since 2002." (FOF ¶ 23(i).) Further, the WCJ rejected Dr. Peduzzi's unsupported opinion that Claimant had pain in both legs following the April 10, 2006, work injury because Claimant's testimony was that his symptoms were left-sided only after this injury and for some time thereafter. (FOF ¶ 23(j).) Even after Dr. Peduzzi was shown this incorrect information that both legs were affected and contrary to Claimant's own testimony, Dr. Peduzzi would not agree to confine the pain to the left side only. (FOF ¶ 23(j).) Finally, the WCJ noted that Claimant chose not to present the testimony of his primary care physician, Dr. Painter, despite Claimant's own testimony that he was treating only with Dr. Painter following the work injury until he began treatment with Dr. Peduzzi on June 5, 2009 at the referral of his attorney. (FOF ¶ 23(m).) See William Penn School District v. Workers' Compensation Appeal Board (Westerman), 717 A.2d 589, 592 (Pa. Cmwlth. 1998) (noting that when an employee fails to call a treating physician who had an integral role in his treatment, an adverse inference is permissible, but not required, from the failure to produce the testimony of the doctor). --------
We now turn to Claimant's appeal of the UR Request filed by Employer on December 5, 2009, requesting review of Claimant's Vax-D treatments by Dr. Peduzzi rendered from August 17, 2009 into the future. Claimant contends that the treatment by Dr. Peduzzi should have been found to be reasonable and necessary. Because the WCJ granted a termination of Claimant's benefits as of August 6, 2007, the date of Claimant's full recovery, we agree with the WCJ and the Board that the question of whether Claimant's medical treatment after December 5, 2009 was reasonable and necessary became moot.
For the foregoing reasons, we affirm the Order of the Board.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, July 23, 2012, the Order of the Workers' Compensation Appeal Board in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge