Opinion
No. 917 C.D. 2014
02-02-2015
Walter Rentier, Petitioner v. Workers' Compensation Appeal Board (Souderton Community Ambulance and Selective Insurance Company of America), 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
Walter Renner (Claimant) petitions for review of the May 14, 2014 order of the Workers' Compensation Appeal Board (Board), which affirmed the decision of a workers' compensation judge (WCJ) denying Claimant's claim petition. We affirm.
Claimant was employed by Souderton Community Ambulance (Employer) as a licensed emergency medical technician (EMT). Claimant also concurrently worked for Harleysville Community Ambulance as an EMT. In the course and scope of his employment with Employer on January 13, 2009, Claimant sustained an injury to his lower back when he slipped and fell on ice. Employer accepted liability for this injury via a Notice of Temporary Compensation Payable describing the same as a lumbar sprain/strain. Claimant returned to work with no wage loss on April 27, 2009, and the parties executed a supplemental agreement suspending Claimant's benefits as of that date. (WCJ's Findings of Fact Nos. 1-2.)
Additionally, Claimant volunteers as an EMT for a group in Lansdale, where his duties primarily involve driving and performing managerial tasks, such as completing paperwork.
On January 24, 2011, Claimant responded to a call with two co-workers, Tim Deputy and Shirley Flick, which involved moving a fairly large patient using a "Reeves" stretcher. In the course of moving this patient, Claimant experienced pain in his lower back which was similar to the pain he experienced during the 2009 incident. After speaking with his supervisor, Claimant sought treatment at the emergency room of Grandview Hospital. (WCJ's Finding of Fact No. 4.)
On March 28, 2011, Claimant filed a claim petition alleging that he sustained injuries to his lower back and shoulders as a result of the January 24, 2011 work incident. Claimant sought payment of total disability benefits, medical bills, and counsel fees from Employer. Employer filed an answer denying the allegations of Claimant's petition.
Employer subsequently filed a termination petition alleging that Claimant had fully recovered from his 2009 work injury and was capable of returning to his pre-injury position without restrictions. Additionally, Employer alleged that, should it be found that Claimant sustained a second work injury on January 24, 2011, Claimant had fully recovered from this injury as well. Claimant filed an answer denying that he was fully recovered. The petitions were consolidated and assigned to a WCJ, who held multiple hearings.
Claimant testified regarding his 2009 work injury and his ongoing complaints of back pain related to that injury. Claimant noted that he was still treating for his 2009 injury in December 2010 when he completed a new patient intake form for a chiropractic visit on December 4, 2010. Claimant also testified as to the facts relating to the January 24, 2011 work incident. Claimant stated that he began treating with Daniel Skubick, M.D., on April 6, 2011, and that Dr. Skubick's treatment consists of trigger point injections to his lower back and right shoulder. Claimant also stated that Dr. Skubick referred him to Dr. Bromberg for additional nerve block treatments, but that these treatments did not provide any relief. Claimant testified that he still treats with Dr. Skubick for residual pain in his back and right shoulder. On cross-examination, Claimant acknowledged that he had been responding to calls, i.e., driving a vehicle and serving as an on-site supervisor, for the volunteer group in Lansdale subsequent to the January 24, 2011 incident. (WCJ's Findings of Fact Nos. 4, 11.)
Dr. Bromberg's full name is not evident in the record.
Claimant also presented the deposition testimony of Donald Lynch, Chief of the Harleysville Emergency Medical Service. Lynch testified that Claimant has not worked for him since January 24, 2011. Lynch stated that he noticed Claimant responding to calls for the Lansdale group, but he never saw Claimant lift any patients. (WCJ's Finding of Fact No. 5.)
Claimant further presented the deposition testimony of Dr. Skubick, a board-certified neurologist who first examined Claimant on April 6, 2011. Dr. Skubick provided Claimant with multiple trigger point injections and referred him to Dr. Bromberg for additional treatment. On cross-examination, Dr. Skubick conceded that he had no records regarding Claimant's 2009 work injury and that Claimant provided no history of the same during his examination. Dr. Skubick testified that his records included cervical, thoracic, and lumbar MRI studies, all of which read as normal, as well as a normal EMG of the upper extremities. Dr. Skubick diagnosed Claimant as suffering from myofascial pain syndrome based upon the presence of trigger points. Dr. Skubick opined that Claimant's condition was the result of the January 24, 2011 work incident. (WCJ's Finding of Fact No. 6.)
In opposition to Claimant's claim petition, Employer presented the deposition testimony of Deputy and Flick, Claimant's co-workers at the time of the January 24, 2011 incident. Deputy testified that he worked at least one shift with Claimant every week and that Claimant had mentioned his 2009 back injury. Following the call on January 24, 2011, Deputy recalled Claimant stating that his back was bothering him and that he was driving himself to Grandview Hospital. Flick also worked with Claimant on a weekly basis and remembered hearing references to Claimant's 2009 back injury. Flick confirmed Deputy's recollection of the 2011 incident and noted that she saw Claimant receiving treatment in the emergency room of Grandview Hospital later that day. (WCJ's Findings of Fact Nos. 7, 8.)
In support of its termination petition, Employer presented the deposition testimony of Paul Shipkin, M.D., also a board-certified neurologist. Dr. Shipkin examined Claimant on September 8, 2011, and reviewed Claimant's medical records. Dr. Shipkin testified that Claimant provided him with a history of a January 2009 work-related back injury, with a return to work in May 2009, as well as a January 24, 2011 work injury. Dr. Shipkin noted that Claimant described the 2011 incident as an aggravation of his lower back and an injured right shoulder. However, Dr. Shipkin stated that Claimant also advised him that his symptoms began in November 2010 and then worsened following physical therapy in early 2011. Dr. Shipkin testified that Claimant's medical records included normal MRI reports at all three back levels and a normal EMG. Dr. Shipkin's initial report repeatedly referenced January 13, 2009, as Claimant's date of injury. However, in a subsequent report, Dr. Shipkin referenced an injury date of January 24, 2011. The WCJ specifically noted the discrepancy as to the date of Claimant's injury. Additionally, the WCJ noted a conflict in Dr. Shipkin's later report regarding Claimant's condition and the extent of his disability. At one point in this report, Dr. Shipkin opined that Claimant was capable of returning to his pre-injury job without restrictions on a full-time basis and without the need for further medical care. However, in the same report, Dr. Shipkin described Claimant's prognosis related to the January 2011 incident as good, thereby suggesting some level of residual disability. (WCJ Finding of Fact No. 10.)
By decision dated August 30, 2012, the WCJ denied both Claimant's claim petition and Employer's termination petition. Regarding the claim petition, the WCJ accepted the testimony of Claimant, Lynch, Deputy, and Flick as credible but rejected the testimony of Dr. Skubick. The WCJ specifically credited Claimant's testimony that he had ongoing back problems since returning to work after the 2009 injury and that he had an exacerbation of his back pain during the 2011 incident. However, the WCJ stated that the legal difference between a recurrence and an aggravation must be addressed by medical experts.
Although the WCJ found that the January 2011 incident exacerbated Claimant's pain, he never found that Claimant was disabled as a result of this incident.
Where a claimant has returned to work after his first injury and then a worsening of his ongoing medical impairment causes renewed disability, a court seeks to determine whether the worsened condition results from a recurrence or an aggravation of the original injury. Safety National Casualty Corporation v. Workers' Compensation Appeal Board (Draper and PMA Insurance Group), 887 A.2d 809, 815 (Pa. Cmwlth. 2005), appeal denied, 909 A.2d 307 (Pa. 2006). "If a compensable disability results directly from a prior injury but manifests itself on the occasion of an intervening incident which does not contribute materially to the physical disability, then the claimant has suffered a recurrence. Conversely, where the intervening incident does materially contribute to the renewed physical disability, a new injury, or aggravation, has occurred. It is well settled in Pennsylvania that an aggravation of a pre-existing condition is deemed a new injury for purposes of workers' compensation law. . . ." Id. (citations omitted.)
The WCJ explained that his rejection of Dr. Skubick's testimony was based upon Claimant's failure to provide Dr. Skubick with a complete history, i.e., the 2009 work injury. The WCJ noted that without knowledge of the 2009 injury, Dr. Skubick could not determine whether the January 2011 incident constituted a recurrence of the 2009 injury, a new injury, or an aggravation, which is treated as a new injury under the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708. Hence, the WCJ concluded that Claimant failed to sustain his burden of proving that his current disability is causally related to the 2011 work incident.
Moreover, the WCJ noted that even if the claim petition was treated as a reinstatement petition for the 2009 work injury, Claimant's medical evidence could not support a finding that the January 2011 incident was in any way a recurrence of the 2009 injury. The WCJ reiterated that Dr. Skubick was not even aware of the 2009 work injury.
Claimant's claim petition only sought benefits for a new injury on January 24, 2011. During the hearings before the WCJ, the WCJ raised the possibility that Claimant's January 24, 2011 work injury might be a recurrence and that he should file a reinstatement petition. See Reproduced Record (R.R.) at 64-66 (the reproduced record submitted by Claimant is missing the lower case "a" as required by Rule 2173 of the Pennsylvania Rules of Appellate Procedure). However, Claimant neither requested nor provided evidence to support a reinstatement.
Regarding Employer's termination petition, the WCJ rejected the testimony of Dr. Shipkin as less than credible based upon numerous conflicts in the two reports he authored. The WCJ specifically referenced Dr. Shipkin's confusion regarding Claimant's date of injury. Hence, the WCJ concluded that Employer failed to meet its burden of proving that Claimant had fully recovered from his 2009 work injury.
Claimant appealed to the Board, arguing that the WCJ erred in denying his claim petition and, alternatively, in failing to treat his claim petition as a reinstatement petition. The Board rejected Claimant's arguments and affirmed the WCJ's decision, noting that Claimant failed to present credible medical evidence establishing disability caused by a new injury or aggravation and failed to establish that he was again disabled due to his 2009 injury.
On appeal to this Court, Claimant reiterates his argument that the WCJ erred in failing to treat his claim petition as a reinstatement petition and in not granting a reinstatement of benefits. We disagree.
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. --------
Section 413(a) of the Act provides that a WCJ "may, at any time, modify, reinstate, suspend, or terminate a notice of compensation payable . . . upon petition filed by either party with the department, upon proof that the disability of an injured employe has increased, decreased, recurred, or has temporarily or finally ceased. . . ." 77 P.S. §772 (emphasis added). A claimant seeking reinstatement of suspended benefits must prove that: (1) his earning power is once again adversely affected by the work-related injury; and, (2) the disability that gave rise to the original claim continues. Bufford v. Workers' Compensation Appeal Board (North American Telecom), 2 A.3d 548 (Pa. 2010); Teledyne McKay v. Workmen's Compensation Appeal Board (Osmolinski), 688 A.2d 259 (Pa. Cmwlth. 1997). Once the claimant meets this burden, the burden shifts to the employer to show that the claimant's loss in earnings is not caused by the disability arising from the work injury. Bufford.
Under a suspension of benefits, an employer remains responsible for the consequences of a work injury. Magulick v. Workers' Compensation Appeal Board (Bethlehem Steel), 704 A.2d 176 (Pa. Cmwlth. 1997). In such cases, the claimant suffers no related loss of income, but the injury is presumed to continue. Id. Hence, a claimant may be entitled to a presumption of causation between the work injury and a later loss of income. A claimant may satisfy the second element of his burden of proof, that the disability that gave rise to the original claim continued, through his own testimony. Teledyne McKay.
Claimant notes that the WCJ credited his testimony regarding his ongoing back problems between the 2009 and 2011 incidents at work, and that he sustained an exacerbation of his pain while using the "Reeves" stretcher in the 2011 incident. Based upon this finding, and the lack of any requirement that he present medical evidence as to causation in the context of a reinstatement following a suspension, Claimant contends that he is entitled to a reinstatement of his benefits. However, Claimant misconstrues the WCJ's finding and the burden regarding a reinstatement.
Claimant never alleged that his earning power was once again adversely affected by his 2009 work-related injury. Instead, Claimant filed a claim petition alleging that his current disability, i.e., loss of earning power, was directly related to injuries sustained during the 2011 incident. Specifically, Claimant's claim petition alleged "[r]ight and left shoulder sprain and strain. Low back s[p]rain and strain." Claimant presented the deposition testimony of Dr. Skubick in support of his claim petition, and Dr. Skubick testified that the history provided by Claimant only referenced a January 24, 2011 incident; he did not discuss low back pain with Claimant. (R.R. at 118, 131.) On cross-examination, when asked whether the trigger points he found were present before the 2011 work incident, Dr. Skubick conceded that he relied on the history provided by Claimant that he did not have those complaints before. (R.R. at 137-38.) Indeed, the fact that Dr. Skubick was not provided with a complete medical history led to the WCJ's rejection of his testimony as not credible.
Moreover, the fact that the WCJ credited Claimant's testimony that he sustained an exacerbation of his pain while using the "Reeves" stretcher in the 2011 incident does not warrant a reinstatement of benefits. Importantly, this testimony did not establish that Claimant's earning power was once again adversely affected by the 2009 work injury or that the disability that gave rise to his original claim continues, i.e., that Claimant was unable to continue working. Because Claimant failed to present sufficient evidence to meet his burden with respect to a claim or a reinstatement petition, the WCJ did not err in denying Claimant's petition.
Next, Claimant argues that the WCJ's finding that Dr. Skubick was unaware of Claimant's 2009 work injury was not supported by the record and should not have been a basis for the WCJ's rejection of Dr. Skubick's testimony as not credible. Again, we disagree.
We begin by noting that it is well-settled that the WCJ has exclusive province over questions of credibility and evidentiary weight and is free to accept or reject the testimony of any witness, in whole or in part. Marazas v. Workers' Compensation Appeal Board (Vitas Healthcare Corporation), 97 A.3d 854 (Pa. Cmwlth. 2014). A court may overturn a credibility determination "only if it is arbitrary and capricious or so fundamentally dependent on a misapprehension of facts, or so otherwise flawed, as to render it irrational." Casne v. Workers' Compensation Appeal Board (STAT Couriers, Inc.), 962 A.2d 14, 19 (Pa. Cmwlth. 2008).
As noted above, in his deposition testimony, Dr. Skubick stated that the history provided by Claimant solely referenced a 2011 work incident. (R.R. at 118). Additionally, Dr. Skubick's entire testimony focused on his treatment of Claimant's neck, shoulder, and arm areas. While Dr. Skubick discussed three muscle block injections in Claimant's back, he explained that these muscles "radiate through the body up into the upper quarter muscles," and, hence, were designed as treatment for Claimant's neck and shoulder complaints. (R.R. at 123.) When asked if Claimant complained of low back pain during his last visit on January 10, 2012, Dr. Skubick responded that "[w]e did not discuss that aspect of it, no." (R.R. at 131.) Accordingly, Dr. Skubick's testimony could not support a finding of disability due to Claimant's 2009 back injury. Further, Dr. Skubick testified that he relied on the history provided by Claimant, which, as noted above, made no mention of the 2009 work injury, and that his understanding was that Claimant "had none of [the] musculoskeletal complaints" prior to 2011. (R.R. at 138.) Thus, there was sufficient support in the record for the WCJ's finding that Dr. Skubick was unaware of Claimant's 2009 work injury.
Accordingly, the order of the Board is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 2nd day of February, 2015, the order of the Workers' Compensation Appeal Board, dated May 14, 2014, is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge