Opinion
No. 893 C.D. 2012
03-15-2013
Evelyn Rivers, Petitioner v. Workers' Compensation Appeal Board (Saunders House), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Evelyn Rivers (Claimant) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) that granted her penalty petition; denied her claim for attorney's fees; and granted her claim petition for a closed period of time, thereafter terminating benefits. In doing so, the Board affirmed the decision of the Workers' Compensation Judge (WCJ), who heard the matter on remand. Claimant assigns several different errors to the Board's decisions, but we conclude that they lack merit and, thus, we affirm.
In 2006, Claimant filed a claim petition pursuant to the Pennsylvania Workers' Compensation Act (Act), seeking compensation for injuries she sustained while working part-time as a dietary server in a nursing home. Claimant had been working for Saunders House (Employer) for approximately three weeks when she slipped on a wet floor and, in an effort to steady herself, grabbed a cart with one hand and a table with the other hand. Claimant did not fall, but the motion caused injuries to her neck, shoulders and back. Claimant asserted that her work injury also rendered her unable to work as a home companion for her concurrent employer, Epicure. Claimant also filed a penalty petition, arguing that Employer failed to issue a timely denial of her claim or present a reasonable contest to her claim petition.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
Claimant was forty-six years old at the time of the work-related incident.
A hearing was held before WCJ Aida Louise Harris. WCJ Harris found that Claimant sustained a work injury while working for Employer part-time, earning $161.82 per week. The WCJ also found that Claimant's concurrent employment with Epicure paid her $233.76 per week. This equaled a combined average weekly wage of $395.58 and a corresponding compensation rate of $345 per week. WCJ Harris credited the testimony of Claimant's treating physician, Nicholas P. Diamond, D.O., who diagnosed Claimant with bilateral C5-6 radiculopathy, post traumatic cephalgia, cervical and lumbar spine sprain and strain, aggravation of C5-6 degenerative disc syndrome, lumbosacral spine radiculitis and chronic myofascial pain syndrome and opined that she was totally disabled. WCJ Harris awarded compensation.
WCJ Harris also found that Employer had violated Section 406.1 of the Act, 77 P.S. § 717.1, by failing to issue a notice denying Claimant's work injury. The WCJ rejected Employer's defense that by offering Claimant a light duty job, it communicated to her its belief that Claimant was able to work. WCJ Harris reasoned that if that were the case, then Employer should have issued a medical only notice of compensation payable. Accordingly, the WCJ assessed a 20% penalty on all past due benefits owed.
It provides, in relevant part:
The employer and insurer shall promptly investigate each injury reported or known to the employer and shall proceed promptly to commence the payment of compensation due either pursuant to an agreement upon the compensation payable or a notice of compensation payable as provided in section 407 or pursuant to a notice of temporary compensation payable as set forth in subsection (d), on forms prescribed by the department and furnished by the insurer. The first installment of compensation shall be paid not later than the twenty-first day after the employer has notice or knowledge of the employe's disability.77 P.S. § 717.1(a). Section 406.1 of the Act was added by the Act of February 8, 1972, P.L. 25, as amended. In Johnstown Housing Authority v. Workers' Compensation Appeal Board (Lewis), 865 A.2d 999, 1003 (Pa. Cmwlth. 2005), we explained that an employer is obligated to issue a notice accepting or denying the injury within the twenty-one day time period. If this is not done, it is deemed to be a violation of Section 406.1 of the Act. Id.
Finally, WCJ Harris found that Employer failed to present a reasonable contest. Employer did present its own medical expert, Leonard Brody, M.D., who testified that Claimant had recovered. He did not, however, opine that she did not sustain a work injury. Accordingly, Claimant was awarded attorney's fees.
Employer appealed to the Board. Employer argued that Claimant gave inconsistent testimony about her concurrent employment, and it was error to find her credible. Further, WCJ Harris did not issue a reasoned decision because she did not adequately explain either the penalty assessment or the award of attorney's fees.
The Board agreed that there were inconsistencies in Claimant's testimony. Specifically, in her 2006 deposition testimony, Claimant stated that she worked for Epicure five to seven days per week, for eight hours a day, earning $9.75 an hour. She also stated that she did not receive any other income, such as social security benefits. At a hearing in 2007, however, Claimant presented a 2006 tax form showing earned income in the amount of $2,705 from Epicure. Claimant also testified that she had been receiving partial social security disability benefits in the amount of $600 per month for approximately ten years. Claimant also acknowledged that her working full-time would render her ineligible for the partial social security disability benefits she was receiving.
The Board concluded that WCJ Harris did not issue a reasoned decision because it did not resolve these conflicts in Claimant's testimony. In addition, the WCJ did not adequately explain her penalty assessment and award of attorney's fees. The Board ordered a remand for additional findings of fact.
In 2008, Employer filed termination and suspension petitions, asserting that Claimant had fully recovered from her work injuries as of March 19, 2008, and had been offered her pre-injury job on April 17, 2008. By the time of the remand, these petitions were still pending before WCJ Harris. Accordingly, WCJ Harris was assigned both the remand and Employer's 2008 petitions. Because WCJ Harris retired without reaching any decision, the case was reassigned to WCJ Ada Guyton in 2011.
With respect to the remand, WCJ Guyton first considered Claimant's claim of concurrent employment. In 2006 testimony, Claimant stated that she worked 40 hours per week, at the rate of $9.75 per hour, for Epicure. She stated that her employment there began in December 2005 and lasted through the date of her 2006 work injury sustained while working for Employer. Claimant's 2006 federal tax form showed that she had income of $2,705 for her work as a home companion. The IRS 1099 Form issued to her by the person for whom she provided these in-home services confirmed compensation in the amount of $2,705. In 2007 testimony, Claimant stated that she had also provided care to another client referred by Epicure for two days just before her work injury. WCJ Guyton found that Claimant did not prove that she worked at least 40 hours a week for Epicure prior to her work injury. She reasoned that if Claimant had worked 40 hours per week from January 1, 2006, through the date of her injury on March 22, 2006, then her earnings should have totaled $4,512, not $2,705. Further, Claimant's testimony was inconsistent with her proferred documentary evidence. Accordingly, Claimant did not prove concurrent employment.
As to Claimant's social security benefits, WCJ Guyton noted that in a 2009 hearing, following remand, Claimant stated that she received social security disability benefits from 1986 through November 2005. She was not receiving benefits at the time of the injury or at the time of her 2006 deposition. However, her social security disability benefits were reinstated in 2007. This is why, when she testified at a hearing in 2007, she reported the benefits. Thus, while her 2007 hearing testimony appeared to conflict with her 2006 deposition testimony, it was, in fact, consistent. WCJ Guyton credited Claimant's testimony on her social security disability.
Claimant began receiving benefits following a motor vehicle accident, in which she suffered injuries to her chest, knees and forehead.
On the remand issue of a reasonable contest, WCJ Guyton found in favor of Employer, concluding that Employer's expert, Dr. Brody, had challenged Claimant's assertion that she sustained a work injury. Dr. Brody found Claimant's subjective complaints of total body pain to be unsupported by the physical examination findings and did not believe that her near fall could possibly support her complaints of pain or disability. Had Dr. Brody's testimony been credited, it would have supported a denial of benefits. Therefore, Employer was determined to have presented a reasonable contest.
Finally, WCJ Guyton reduced the penalty of 20% imposed by WCJ Harris to 10%. The 20% penalty had been based upon Employer's failure to issue a timely denial. WCJ Harris failed to consider that Employer's medical expert provided a basis for a reasonable contest. Claimant's petition would have been litigated regardless of whether Employer had issued a timely denial. For this reason, WCJ Guyton concluded that a 10% penalty was more appropriate.
WCJ Harris had credited Claimant's medical expert, and this determination was not subject to the remand order. Accordingly, WCJ Guyton granted Claimant benefits for the injuries described by Dr. Diamond.
WCJ Guyton explained that, as to the remand, she would not make new credibility determinations on the medical experts because it was not ordered by the Board. However, she would consider Dr. Diamond's credibility with respect to Employer's termination and suspension petitions.
WCJ Guyton then addressed Employer's suspension and termination petitions. In support of its petitions, Employer presented the testimony of Paul M. Shipkin, M.D., who examined Claimant on March 19, 2008. Claimant reiterated to him that her injury occurred when she slipped and grabbed a table and a cart to catch herself, which motion resulted in constant neck, shoulder and lower back pain. Dr. Shipkin found that Claimant demonstrated a full range of motion in her neck without discomfort. He found her neck and back to be non-tender with good strength in all muscle groups. He also observed Claimant bending over to put her shoes on without discomfort. Sensation and reflexes were also normal.
Dr. Shipkin concluded that Claimant had fully recovered from the injuries found by WCJ Harris because Claimant exhibited multiple non-physiological findings on examination; there was no objective evidence to support her subjective complaints; and she was neurologically intact. He opined that she could return to work without restrictions.
Claimant presented the testimony of Dr. Diamond. He reiterated his prior opinion about Claimant's work injuries and concluded that Claimant remained totally disabled. He acknowledged, however, that her symptoms varied from time to time.
Claimant testified, stating that her symptoms had not improved and, in fact, were getting worse. She stated that she suffers pain in her neck, shoulders, back, fingers and feet; headaches that last for days; constant burning and tingling throughout her body; and can barely bend or lift anything. She treats with Dr. Diamond monthly, for which he prescribes pain medication.
WCJ Guyton credited the testimony of Dr. Shipkin and rejected the testimony of Dr. Diamond. She did not find Claimant credible. Based on these findings, WCJ Guyton granted Claimant total disability benefits at the rate of $145.75 per week through March 18, 2008, and terminated benefits thereafter. She granted Claimant interest at the rate of 10% per annum on all past due compensation, based on a total disability rate of $145.75 per week, having found there was no concurrent employment. The WCJ denied reasonable contest attorney's fees.
Claimant appealed to the Board, challenging the amount of the disability compensation, the 10% penalty, the termination of benefits and the conclusion that Employer engaged in a reasonable contest. The Board affirmed. Claimant now petitions for this Court's review.
Our scope of review of an order of the Board is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether constitutional rights were violated or an error of law was committed. City of Philadelphia v. Workers' Compensation Appeal Board (Brown), 830 A.2d 649, 653 n.2 (Pa. Cmwlth. 2003). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Mrs. Smith's Frozen Foods Company v. Workmen's Compensation Appeal Board (Clouser), 539 A.2d 11, 14 (Pa. Cmwlth. 1988).
On appeal, Claimant raises five issues. First, Claimant argues the Board erred in affirming the average weekly wage found by WCJ Guyton. Second, she challenges the determination that Employer presented a reasonable contest to the claim petition. Third, Claimant challenges the reduction in the penalty assessment from 20% to 10%. Fourth, Claimant challenges the termination of her benefits. Fifth, Claimant argues that it was error to hold that Employer engaged in a reasonable contest by litigating the termination and suspension petitions while its appeal of the claim petition was pending.
In her first issue, Claimant argues that her testimony of concurrent employment was unrebutted and that it was error for the WCJ to disregard her tax records. Employer counters that Claimant's tax records were considered and found to rebut Claimant's testimony that she had concurrent earnings at the time of the work injury.
It is the claimant's burden to establish all of the elements necessary for an award of benefits. Inglis House v. Workmen's Compensation Appeal Board (Reedy), 535 Pa. 135, 141, 634 A.2d 592, 595 (1993). When a claimant holds more than one job at the time of a work injury, the average weekly wage must be calculated based on the wages from all of the other jobs. Miller v. Workmen's Compensation Appeal Board (Midlantic Coast Delivery System), 661 A.2d 916, 919 (Pa. Cmwlth. 1995). However, the concurrent employment relationship must be "on-going" at the time of the injury. Ostrawski v. Workers' Compensation Appeal Board (UPMC Braddock Hospital), 969 A.2d 15, 21-22 (Pa. Cmwlth. 2009).
Claimant's tax document did not support her claim of full-time work as a home companion. It showed earnings from working as a companion for one individual during some part of 2006, but it did not prove that she was working as a home companion on the date of her work injury. Her testimony to that effect was contradicted by Claimant's own tax records, and WCJ Guyton found Claimant's testimony on concurrent employment not credible. Accordingly, the fact that her testimony was not rebutted is of no moment because she did not carry her burden of proof.
In her second issue, Claimant argues that Dr. Brody's testimony did not make Employer's contest reasonable because Employer did not issue a denial of her claim. Employer counters that while there was an initial failure to issue a denial of the claim, within months it provided the deposition testimony of Dr. Brody, which was sufficient to support a denial of benefits.
If an employer fails to issue a denial of benefits, forcing the claimant to litigate, it will be liable for payment of attorney's fees unless it can prove that its contest was reasonable. Waldameer Park, Inc. v. Workers' Compensation Appeal Board (Morrison), 819 A.2d 164, 170 (Pa. Cmwlth. 2003). To establish a reasonable contest, an employer must have in its possession at the time the decision to contest is made, or shortly thereafter, medical evidence supporting its position. Yeagle v. Workmen's Compensation Appeal Board (Stone Container Corporation), 630 A.2d 558, 560 (Pa. Cmwlth. 1993). The medical evidence must be "conflicting or susceptible to contrary inferences." Waldameer Park, 819 A.2d at 170. Further, there must be an absence of evidence that the contest was frivolous or filed to harass the claimant. Id. Generally, we consider whether, had the employer properly complied with the Act, it is "possible that Claimant never would have needed to hire an attorney and incur attorney's fees." Id. at 171.
As explained by the Board, Employer had an independent medical examination of Claimant done several months after she filed her claim petition. Contrary to Claimant's contentions, Dr. Brody did not limit his opinion to a determination that Claimant had recovered from a work injury. Dr. Brody rejected Claimant's pain complaints as subjective. He observed her walk and move without apparent discomfort. He explained that her complaints of burning, as well as decreased sensation in her arms and legs, were inconsistent with the way nerves work. As found by WCJ Guyton, "Dr. Brody opined that there was no way to explain the cause of [Claimant's] complaints of total body pain with the mechanism of the injury (almost fall) reported by her." WCJ Guyton Determination at 11.
We agree with the Board that Employer's contest was reasonable. Employer presented evidence that, if believed, disputed Claimant's claim of disabling pain. We reject Claimant's second assertion of error.
In her third issue, Claimant challenges WCJ Guyton's reduction in the penalty from 20% to 10%. WCJ Harris found that it was Employer's failure to accept or deny the claim that caused Claimant to litigate. On remand, WCJ Guyton agreed that Employer failed to comply with the Act by issuing notice of acceptance or denial; however, she concluded that Employer's contest became reasonable when it obtained an opinion that Claimant had not been injured in her near fall at work. On that basis, WCJ Guyton reduced the penalty to 10%. Claimant argues that in reducing the penalty WCJ Guyton exceeded the Board's remand order. Employer retorts that the remand order specifically provided for reconsideration of the penalty award. We agree.
When a violation of the Act occurs, the imposition of a penalty is not automatic. Brutico v. Workers' Compensation Appeal Board (US Airways, Inc.), 866 A.2d 1152, 1156 (Pa. Cmwlth. 2004). Whether to impose a penalty falls within the discretion of the WCJ and will not be set aside absent an abuse of discretion. Id. We agree with Employer that the Board's remand order specifically directed that the penalties assessed by WCJ Harris be addressed. Thus, Claimant's claim that WCJ Guyton exceeded the scope of remand must be rejected. Claimant also has made no showing that an abuse of discretion occurred, and we reject her challenge to the penalty reduction.
In her fourth issue, Claimant argues that Employer failed to prove a right to termination of benefits because it did not establish a change in her condition. Claimant argues that Employer's medical expert, Dr. Shipkin, did not accept Dr. Diamond's diagnosis, as is required in a termination. Employer replies that Dr. Shipkin accepted the prior determination of disability and established that Claimant's condition had changed, i.e., no longer existed.
Claimant further argues that WCJ Guyton erred in finding her not credible as to her continued complaints of pain. Claimant contends that this credibility determination was based on WCJ Guyton's improper rejection of her testimony concerning the issue of concurrent employment. As we have already determined that WCJ Guyton did not error in denying Claimant's claim of concurrent employment, we reject this argument. --------
An employer seeking to terminate benefits must establish "that the claimant's disability has ceased or that any current disability arises from a cause unrelated to the claimant's work injury." Miller v. Workers' Compensation Appeal Board (Peoplease Corporation, Arch Insurance Company and Gallagher Bassett Services), 29 A.3d 869, 871 n.6 (Pa. Cmwlth. 2011). This burden is met when a medical expert testifies that the claimant is fully recovered; can return to work without restrictions; and that there are no objective medical findings to substantiate any claims of pain or connect them to the work injury. Id.
Claimant argues that Dr. Shipkin did not accept the fact that she had sustained a work injury, but the record establishes otherwise. WCJ Guyton specifically recounted what issues she would address on remand. She explained that she would not revisit the credibility determinations made by WCJ Harris on the medical evidence. Accordingly, WCJ Guyton accepted the credibility determinations made by WCJ Harris in favor of Dr. Diamond and granted benefits on that basis.
In his testimony in support of the termination petition, Dr. Shipkin testified that he had no reason to doubt the validity of the work injures as adjudicated by WCJ Harris. In fact, he acknowledged reading the description of the injuries found by WCJ Harris and stated that he accepted the adjudicated diagnoses. However, he testified that by the time of his 2008 examination, Claimant had fully recovered from all of the injuries. Pointedly, in examining Claimant, he found no objective findings of impairment or any reason for Claimant to have pain. He concluded that Claimant could return to work without restrictions.
Claimant suggests that because Dr. Diamond's 2009 testimony regarding the termination petition was similar to his 2007 testimony as to the claim petition, WCJ Guyton was wrong in rejecting it. As noted by the Board, Dr. Diamond's accepted opinion that Claimant was disabled in 2007 was not dispositive of the issue in the termination proceeding, i.e., whether Claimant had recovered from her injuries as of March 19, 2008.
Dr. Shipkin's testimony supports a termination of benefits. Claimant's contention that he rejected the prior adjudication of disability is not supported by the record. It has also not been established that WCJ Guyton improperly rejected the credibility determinations made by WCJ Harris. Thus, we reject Claimant's fourth contention of error.
In her final argument, Claimant argues that Employer engaged in an unreasonable contest in seeking to terminate or suspend benefits before there was a final determination on the claim petition. Further, she argues that Employer's termination petition was unsupportable because Dr. Shipkin's affidavit of recovery did not list all of the work injuries found by WCJ Harris. Employer replies that it is not obligated to wait until a final decision on a claim petition is reached before filing a termination or suspension petition. Further, although Dr. Shipkin's affidavit of recovery inadvertently failed to list all of the accepted work injuries, he explained that omission in his deposition and clarified that he accepted all of the work injuries found by WCJ Harris.
In Sharkey v. Workers' Compensation Appeal Board (Tempo, Inc.), 739 A.2d 641 (Pa. Cmwlth. 1999), an employer filed suspension and termination petitions while an appeal was pending before the Board on the employer's petition to review the notice of compensation payable. We explained that an employer cannot file termination or suspension petitions if it would result in the "litigation of an identical issue" to that already raised on appeal. Id. at 643. We explained if the termination petition alleged that the claimant was never disabled, the issues would be identical. Id. However, because the termination and suspension petitions in question did not allege that the claimant was never disabled, we concluded that the issues were not identical and the WCJ did not err in addressing them. Id.
Likewise, here, Employer's termination petition did not assert that Claimant had never been injured or disabled. In making its case, Employer accepted all of the injuries recognized in the proceeding before WCJ Harris and acknowledged that Claimant was totally disabled at the time of the decision of the claim petition. However, it believed that Claimant had recovered at a later date and was no longer entitled to benefits. In short, Employer did not litigate an issue identical to one considered in the claim proceeding.
We also reject Claimant's position that Dr. Shipkin's incomplete affidavit of recovery established an unreasonable contest. Claimant did not raise this issue before either WCJ. In any case, Dr. Shipkin testified that his affidavit had inadvertently omitted some of the diagnoses found by WCJ Harris. However, he accepted and acknowledged all of the adjudicated diagnoses in his clear and unequivocal opinion of full recovery.
For these reasons, the order of the Board is affirmed.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 15th day of March, 2013, the order of the Workers' Compensation Appeal Board dated April 24, 2012, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge