Opinion
No. 364 C.D. 2014
11-10-2014
Mary Ellen Price, Petitioner v. Workers' Compensation Appeal Board (Babb Absence Management Services and Hospital of the University of Pennsylvania), Respondents
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Mary Ellen Price (Claimant) petitions, pro se, for review of the February 12, 2014 order of the Workers' Compensation Appeal Board (Board), which affirmed the decision of a workers' compensation judge (WCJ) and denied Claimant's request to remand the matter to the WCJ for a new hearing. Claimant asserts she is entitled to a new hearing under section 426 of the Workers' Compensation Act (Act) due to incompetent representation by her counsel. We affirm.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §871. Section 426 provides that the Board may grant a rehearing upon cause shown by the petitioning party.
Claimant was employed as a registered nurse for the Hospital of the University of Pennsylvania (Employer). On December 16, 2010, Claimant filed a claim petition, alleging that she became disabled as of August 24, 2010, as a result of sustaining a cumulative trauma injury to her spine from lifting heavy patients. The petition was assigned to a WCJ, who held a hearing on August 16, 2011. (WCJ's Findings of Fact Nos. 1-3.)
Claimant testified by way of February 28, 2011 deposition and before the WCJ at the August 16, 2011 hearing. Claimant stated that she stopped working on August 24, 2010, due to a sudden onset of severe low back pain while she was walking down stairs in her home. Claimant testified that she visited the emergency department on August 25 and 26, 2010. Employer admitted into evidence records of the Delaware County Memorial Hospital Emergency Department without objection from Claimant's attorney. According to those records, on August 25, 2010, Claimant told emergency department personnel that she experienced pain after she moved in an awkward manner while her son was sitting on her lap, and on August 26, 2010, Claimant said that she felt pain while she was holding her son and walking down stairs, and added that she had suffered a similar episode with her back two years earlier. Claimant denied that the history contained in the emergency department records was the history she provided. (Notes of Testimony (N.T.) at 3-5, 10-11, 14-15, 24-25, 28; Claimant's dep. at 5-6, 8, 23-24; Employer's exhibits Nos. 3-4.)
At the time of the WCJ's hearing, Claimant was represented by counsel.
Claimant testified that she first saw a Dr. Stellabotte, an orthopedic specialist, on September 1, 2010, and then began treatment with a Dr. Prawak, a physiatrist who specializes in spinal injuries. Claimant stated that her attorney subsequently referred her to Robert J. Cavoto, D.C., (Dr. Cavoto), and she stopped treatment with Dr. Prawak at that time. Claimant added that Dr. Cavoto's treatment has provided her with relief but she continues to have low back pain, as well as constant pain in her upper back, arm, and hand. Claimant further testified that Robert E. Mannherz, M.D., (Dr. Mannherz) examined her on March 16, 2011, at Employer's request, and that her symptoms had not significantly changed since then. Claimant stated that she has not returned to work since August 24, 2010, and that she has not felt capable of doing so. (N.T. at 10, 15, 18, 22, 26, 31; Claimant's dep. at 10-12, 31-32.)
Claimant presented the March 9, 2011 deposition testimony of Dr. Cavoto, a licensed chiropractor who first examined Claimant on December 16, 2010. Dr. Cavoto diagnosed Claimant with disc herniations, associated radiculopathy, lumbar facet syndrome, and associated sprain/strain of the thoracic and cervical spine. He stated that he has not released Claimant to any type of work. Dr. Cavoto opined that Claimant's back injury resulted from strains at work; however, Dr. Cavoto acknowledged that he had not reviewed the emergency department records or any other records of Claimant's prior treating physicians. (Dr. Cavoto's dep. at 5, 8-9, 17-18, 21.)
Employer offered the deposition testimony of Dr. Mannherz, who is board certified in orthopedic surgery. Dr. Mannherz stated that he examined Claimant on March 16, 2011. He testified that, other than some tenderness and mild limited range of motion, his examination of Claimant and Claimant's tests returned normal results. Dr. Mannherz stated that he reviewed MRIs dated October 5, 2010, December 20, 2010, and February 14, 2011, that only revealed a shallow disc herniation in the lumbar spine and no evidence of disc herniation in the cervical spine. Dr. Mannherz opined that Claimant did not suffer a work-related injury. (Dr. Mannherz's dep. at 7, 12-15, 20.)
By decision and order dated December 28, 2011, the WCJ found Claimant's testimony credible with the exception of any testimony that would support a finding that her disability is work-related. The WCJ also found Dr. Cavoto's testimony not credible, noting that Dr. Cavoto did not review the emergency department records or other records of Claimant's prior treatment. The WCJ accepted Dr. Mannherz's testimony as credible, noting that it was supported by his findings on examination of Claimant, his review of the emergency department and other medical records, and his expertise as a board certified orthopedic surgeon. Thus, the WCJ concluded that Claimant failed to meet her burden of proving that she sustained a work-related disability, and denied her claim petition. Claimant appealed to the Board, arguing that the WCJ's findings were not supported by substantial, competent evidence. Claimant also requested remand to the WCJ for a new hearing, asserting her counsel's representation was incompetent.
By opinion and order dated February 12, 2014, the Board determined that there was no credible medical evidence in the record to support Claimant's contention that her disability is work-related. The Board also determined that Claimant's request to exclude the emergency department records and to remand to the WCJ to allow for additional testimony and documentary evidence, namely Dr. Prawak's records, due to Claimant's counsel's incompetency was essentially a request for a new hearing. The Board noted that, although Claimant's counsel did not object to the admission of the emergency department records, the emergency department records fall under Pennsylvania Rule of Evidence (Pa.R.E.) 803(4)'s medical treatment hearsay exception. The Board also determined that, even if Dr. Prawak's records corroborated Claimant's version of the facts, the WCJ rejected Claimant's testimony that her injury is work-related as not credible, and, thus, Dr. Prawak's records would not have changed the outcome. Additionally, citing Martell v. Workers' Compensation Appeal Board (Doyle Equipment), 707 A.2d 242 (Pa. Cmwlth. 1998), the Board concluded that Dr. Prawak's records were not after-discovered evidence and that Claimant's counsel could have had strategic reasons for not admitting them, in which case a rehearing is not appropriate. Accordingly, by order dated February 12, 2014, the Board affirmed the WCJ's decision.
We note that a petition for a rehearing pursuant to section 426 of the Act is properly filed after the Board has rendered a decision. Puhl v. Workers' Compensation Appeal Board (Sharon Steel Corporation), 724 A.2d 997, 1001 n.4 (Pa. Cmwlth. 1999). Although Claimant has made a remand request, Claimant is essentially seeking the opportunity to present her case before the WCJ with new counsel, which is a request for a new hearing. The distinction between a remand and rehearing request makes little difference. As this Court has held, a remand request accompanied by relevant, newly discovered evidence substitutes as a formal petition for rehearing under section 426. Id. Moreover, our courts have used the same standards for remand cases as with rehearing cases under section 426. Id. Thus, in accordance with the Board, we will consider Claimant's request as one for a rehearing.
We recognize that corroborating evidence might have influenced the WCJ's credibility determination.
On appeal to this Court, Claimant argues that the Board abused its discretion in not granting a remand to the WCJ for a hearing in order to take additional testimony and evidence and to exclude the emergency department documents from the record, because Claimant's counsel incompetently failed to present relevant evidence and failed to object to the introduction of inadmissible hearsay.
Our scope of review is limited to determining whether constitutional rights have been violated, whether an error of law has been committed, or whether findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
Rehearing for Additional Evidence Not Proper
Claimant first argues that the Board abused its discretion in denying her request for a remand in order for the WCJ to take additional testimony and evidence, based on the incompetence of her counsel. Section 426 of the Act provides in relevant part that "[t]he 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 referee . . . ." 77 P.S. §871 (emphasis added). As this Court has held:
[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, 589 A.2d 694 (Pa. 1990). Claimant asserts that she has shown cause for a grant of a rehearing because her counsel failed to submit into evidence Dr. Prawak's reports of her prior treatment, as well as documentation related to working conditions and peer-reviewed literature on cumulative trauma injury, which would have corroborated Claimant's testimony regarding her injuries.
The Board has broad discretion to grant or deny a petition for a rehearing, and this Court will not overturn such a decision absent an abuse of discretion. Douglas v. Workmen's Compensation Appeal Board, 377 A.2d 1300, 1302 (Pa. Cmwlth. 1977). A rehearing request will be granted if there is "manifest injustice" involving "extraordinary circumstances," oftentimes when evidence is after-discovered or a claimant's counsel has acted incompetently or negligently. Martell, 707 A.2d at 244. The Board may grant a rehearing in the interests of justice even if the proffered additional evidence could have been available at the time of the original hearing through the exercise of due diligence. Cudo v. Hallstead Foundry, Inc., 539 A.2d 792, 794-95 (Pa. 1988). However, "a rehearing should not be allowed simply for the purpose of strengthening weak proofs which have already been presented or for the purpose of hearing additional testimony that is merely cumulative." General Woodcraft, 318 A.2d at 387.
In Martell, the employer filed a petition for review and a petition for termination of the claimant's benefits. At a WCJ's hearing and over objection of the employer, the claimant sought to introduce his treating physician's report. The WCJ declined to admit the report until the claimant's physician was deposed and continued the hearing to give the claimant the opportunity to arrange for the deposition. Subsequently, the claimant notified the WCJ that he declined to depose the physician, and the record was closed. Five months later, the claimant petitioned the WCJ to open the record so that the claimant could depose a different physician. The record did not reflect whether the WCJ responded to the claimant's request, but the WCJ terminated the claimant's benefits, effectively denying the claimant's petition to open the record. The claimant appealed to the Board and requested that his appeal be considered a request for a rehearing. In interpreting the appeal as a remand request, the Board affirmed the WCJ's decision and denied the remand request.
On appeal to this Court, the claimant argued that a rehearing should have been granted pursuant to section 426 of the Act. We concluded as follows:
While the authorities cited stand for the proposition that the Board has broad discretion to order rehearing where the interests of justice so require, they do not mandate rehearing every time a losing party can point to some evidence which his attorney did not introduce. Here, the Board considered claimant's request, and we do not believe that the Board abused its discretion in denying rehearing. . . . [W]hile the reasons of counsel for not presenting medical evidence have never been explored in the record, under the circumstances of this case, they are as readily explained as strategic decisions as negligence. At all events, this case does not present the kind of apparent manifest injustice that was evident in the cases cited, and we believe only in such extraordinary circumstances may the Board be found to have abused its discretion in denying rehearing for the presentation of additional evidence. Otherwise, piecemeal hearings prompted by the wisdom of hindsight would become the rule rather than the exception.Martell, 707 A.2d at 244 (emphasis added). Thus, we affirmed the Board's order.
In Bickel, the WCJ kept the record open for the claimant's counsel to present testimony from the claimant's treating physician. However, the claimant's counsel never presented the physician's testimony. The claimant's counsel informed the WCJ that the record could be closed, and no medical evidence was ever submitted on the claimant's behalf. The WCJ denied the claimant's claim, finding the claimant did not meet his burden of proof. The Board denied the claimant's request for a rehearing due to the claimant's counsel's incompetence. On appeal, we determined that the claimant's counsel acted incompetently by not introducing the only proof of the claimant's injuries, and, thus, reversed the Board's order and remanded for further proceedings.
In this case, Claimant seeks to introduce Dr. Prawak's reports in order to corroborate her own testimony that she experienced a sudden onset of severe low back pain while walking down the stairs in her home. We note there is no suggestion that this evidence was newly discovered or was not previously available, and a rehearing is not granted for the purpose of admitting additional evidence to strengthen weak proofs already presented. General Woodcraft.
We recognize that Claimant has the burden of proof in this claim proceeding and was required to present medical evidence in order to meet that burden. Here, however, unlike the counsel in Bickel, Claimant's counsel presented medical evidence in support of Claimant's petition. Specifically, Dr. Cavoto testified that he diagnosed Claimant with disc herniations, associated radiculopathy, lumbar facet syndrome, and associated sprain/strain of the thoracic and cervical spine, and he expressly stated that Claimant sustained a back injury at work. However, the WCJ rejected Dr. Cavoto's testimony as not credible. Although Claimant's counsel may not have presented every piece of medical evidence available, evidence was presented that, if believed, would have satisfied Claimant's burden of proof. Thus, the record does not support Claimant's assertion that her attorney's conduct resulted in "manifest injustice." Under these circumstances, we conclude that the Board did not abuse its discretion in denying Claimant's rehearing request. Martell.
Where the causal relationship between the injury and the employment is not obvious, the claimant must present unequivocal medical evidence to establish this causal relationship. Lynch v. Workers' Compensation Appeal Board (Teledyne Vasco), 680 A.2d 847, 849 (Pa. 1996).
Claimant also asserts that her counsel failed to adequately communicate with her and did not provide her with the full case file when she terminated the relationship. However, Claimant has not fully developed these matters within the argument section of her brief, and, thus, they are waived. In re Condemnation of Land for South East Central Business District Redevelopment Area No. 1 (405 Madison Street, City of Chester), 946 A.2d 1154, 1156 (Pa. Cmwlth. 2008) ("Arguments not properly developed in a brief will be deemed waived."). Moreover, these particular complaints are more appropriately brought before the attorney disciplinary board.
Emergency Department Records Admissible
Claimant next contends that the emergency department records are inadmissible hearsay and that the Board abused its discretion in not granting a rehearing to exclude them. Claimant also contends that her counsel acted incompetently by not objecting to the admission of the records at the hearing. However, Pa.R.E. 803(4) provides as follows:
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:Pa.R.E. 803(4). "[S]o long as the statements recorded in the hospital records are pathologically germane to the physical or mental condition which caused the patient to come to the hospital for treatment, those statements are admissible." SKF Industries, Inc. v. Cody, 276 A.2d 356, 359 (Pa. Cmwlth. 1971). Section 422(b) of the Act states that "[t]he records kept by a hospital of the medical or surgical treatment given to an employe in such hospital shall be admissible as evidence of the medical and surgical matters stated therein." 77 P.S. §835. Based on this hearsay exception, the emergency department records containing Claimant's description of her injury are admissible. Thus, Claimant's counsel did not act incompetently by not objecting to the admission of the records, and the Board did not abuse its discretion in denying Claimant's request for a rehearing to exclude them.
* * *
(4) Statement Made for Medical Diagnosis or Treatment. A statement that:
(A) is made for--and is reasonably pertinent to--medical treatment or diagnosis in contemplation of treatment; and
(B) describes medical history, past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof, insofar as reasonably pertinent to treatment, or diagnosis in contemplation of treatment.
Because the challenged records at issue are medical records, Pa.R.E. 803(4) is the only rule of evidence applicable to this case. Thus, we need not address all other hearsay exception rules discussed in Claimant's brief. Moreover, we note that Claimant mistakenly cites the federal rules of evidence instead of the Pa.R.E. --------
Because the failure of Claimant's counsel to admit Dr. Prawak's reports is not sufficient to establish incompetence and the emergency department records are not inadmissible hearsay, the Board did not abuse its discretion in denying Claimant's rehearing petition. Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 10th day of November, 2014, the February 12, 2014 order of the Workers' Compensation Appeal Board is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge