DTE Energy Co. v. Workers' Comp. Appeal Bd.
| Decision Date | 28 January 2021 |
| Docket Number | No. 418 C.D. 2020,418 C.D. 2020 |
| Citation | 245 A.3d 413 |
| Parties | DTE ENERGY COMPANY, INC. and Old Republic Insurance Company, Petitioners v. WORKERS’ COMPENSATION APPEAL BOARD (Weatherby), Respondent |
| Court | Pennsylvania Commonwealth Court |
Toni J. Williams, Pittsburgh, for Petitioners.
Joel B. Kundin, Pittsburgh, for Respondent.
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge,1 HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION BY PRESIDENT JUDGE LEAVITT
DTE Energy Company, Inc. and Old Republic Insurance Company (collectively, Employer) petition for review of an adjudication of the Workers’ Compensation Appeal Board (Board) that granted Jeffrey Weatherby's (Claimant) petition for penalties under the Workers’ Compensation Act (Act).2 In doing so, the Board affirmed the decision of the Workers’ Compensation Judge (WCJ) that Employer had violated the Act by not paying certain medical expenses related to Claimant's 1988 work injury. Upon review, we affirm.
On March 21, 1988, Claimant sustained a work injury. Employer accepted liability in a notice of compensation payable (NCP) that identified the work injury as a "Leg/Back" injury. Certified Record (C.R.), Item 24, at 1. Claimant continued working until July 17, 1988, and then collected total and partial disability benefits sporadically until March 7, 1994, at which time he returned to work for a different employer. Accordingly, Claimant's disability benefits were suspended as of March 13, 1995.
On December 3, 2015, Claimant and Employer entered into a Compromise and Release (C&R) Agreement, which provided that Employer remained responsible for certain medical bills incurred to treat Claimant's "Leg/Back" work injury. C.R., Item 19, at 5. The C&R Agreement addressed the question of Employer's liability for Claimant's August 9, 2014, low back fusion surgery as follows:
There is currently pending a petition for penalties relative to medical treatment in the nature of fusion surgery at L1-L2 through S1 performed August 9, 2014. This C&R does not resolve or dispose of the issue brought by that petition, i.e., whether the August 9, 2014 surgery and related expenses are causally related to the March 21, 1988 injury and therefore, the responsibility of Employer....
C.R., Item 19, at 7 (emphasis added).
In January 2016, WCJ Cheryl Ignasiak denied Claimant's penalty petition, holding that Employer was not liable for Claimant's 2014 low back surgery. In so concluding, WCJ Ignasiak credited the opinion of Thomas Kramer, M.D., that Claimant had attained maximum medical improvement as of May 2009, at which time surgery was found not to be needed. Specifically, WCJ Ignasiak found, as fact, the following:
Based on the October 13, 2014 and January 15, 2015 medical reports of Dr. Thomas Kramer, M.D., this [WCJ] finds as fact that Dr. Kramer evaluated [C]laimant in May 2009 regarding the March 21, 1988 work injury. Dr. Kramer also performed updated record reviews regarding whether the surgery in August 2014 was related to the work injury that occurred 26 years prior. This [WCJ] accepts Dr. Kramer's medical opinion there is no clear cut correlation of a need for the surgery that was performed in August 2014 to the work injury of March 1988. By May 2009, [C]laimant had achieved his maximum degree of medical improvement and no surgery was recommended or needed. Thus, the surgery performed August 19, 2014[3 ] was not related to the work injury of March 21, 1988. There is no further treatment that is necessary or that can be expected in the future relative to the low back condition as a result of the March 21, 1988 work event.
WCJ Ignasiak Decision, Finding of Fact (F.F.) No. 4; C.R., Item 25, at 5 (emphasis added).
On May 9, 2018, Claimant filed the instant penalty petition, alleging that Employer violated the Act by not paying for medical expenses related to Claimant's 1988 work injury. In response, Employer maintained that the doctrine of collateral estoppel barred Claimant's new penalty petition because WCJ Ignasiak had found, as fact, that Claimant had reached maximum medical improvement and that "no further treatment [ ] is necessary" for his 1988 work injury. Id . The new penalty petition was assigned to WCJ Steven Minnich.
In support of his penalty petition, Claimant testified that since his 1988 work injury, he has had several surgeries, including a spinal fusion
at L4-S1 in September 1988 and an implantation of a spinal cord stimulator in 2009. In March 1994, he returned to work as a respiratory therapist with a different employer, but in May 2014, he left for neck surgery and has not worked since. He has since been diagnosed with adhesive arachnoiditis
. Claimant's neck and low back surgeries performed in 2014 were determined to be unrelated to his 1988 work injury.
Claimant continues to treat with Dr. Abraham Kabazie for pain management with different courses of pain medications. Claimant also receives trigger point injections in his low back and legs. His wife's health insurer has paid for these medications because Employer denied liability.
Claimant testified that he has not been treated for his neck since the 2014 surgery. On cross-examination, Claimant admitted that he was involved in a motor vehicle accident in September 2016, which caused neck, shoulder and arm pain. The medications Dr. Kabazie prescribed for his back pain have also relieved these pain symptoms. Claimant also admitted that he has had pseudo gout arthritis
, which causes pain.
Claimant presented an April 30, 2018, report issued by Robert Bernstein, M.D., his primary care physician. Dr. Bernstein opined that Claimant's chronic back pain was the "direct result" of the 1988 work injury. C.R., Item 13, at 2. Specifically, Dr. Bernstein attributed Claimant's back pain to a myelogram
performed in 1988 to assess his work injuries, which caused an inflammatory condition called chronic lumbar arachnoiditis. Dr. Bernstein opined that Claimant's chronic back pain is permanent and Id. at 1.
Claimant also presented Dr. Bernstein's medical notes of 2016 and 2017; an undated letter from Dr. Kabazie; and numerous medical bills and records relating to Claimant's pain treatment and prescription medicines between 2016 and 2018.
Employer submitted the medical records relating to Claimant's low back surgery of August 2014.
WCJ Minnich granted Claimant's penalty petition. In doing so, the WCJ credited Claimant's testimony, which he found consistent with the medical records reporting pain symptoms primarily related to Claimant's neck, shoulder and arm but also to his low back. The WCJ found that the medication and trigger point injections treated Claimant's back and leg, for which Employer accepted liability in 1988. The WCJ explained that Employer had the burden to show that the disputed treatment was not related to the accepted work injury, and it failed to do so. WCJ Minnich Decision at 6, Conclusion of Law No. 3 (citing Kurtz v. Workers’ Compensation Appeal Board (Waynesburg College) , 794 A.2d 443 (Pa. Cmwlth. 2002) ); C.R., Item 5, at 6.
WCJ Minnich found WCJ Ignasiak's statement in her 2016 decision that no further treatment would be needed for Claimant's 1988 low back work injury to be "mere dicta at best, with no legal import or binding effect." WCJ Minnich Decision at 6, Conclusion of Law No. 3; C.R., Item 5, at 6. The only issue before WCJ Ignasiak was whether Claimant's August 2014 low back fusion surgery was work-related, as set forth in the C&R Agreement. The parties did not have an opportunity to litigate the issue of "future medical treatment" of Claimant's 1988 work injury before WCJ Ignasiak. Nevertheless, WCJ Minnich found that Employer presented a reasonable contest "based upon a good faith interpretation of [WCJ] Ignasiak's [d]ecision." WCJ Minnich Decision at 7, Conclusion of Law No. 6; C.R., Item 5, at 7.
WCJ Minnich ordered Employer to pay the outstanding medical expenses at issue and assessed a 20% penalty against Employer on the medical bills, after repricing. Employer appealed to the Board and argued that Claimant's penalty petition was barred on the ground of collateral estoppel and that WCJ Minnich erred in granting the penalty petition. The Board affirmed.
On appeal,4 Employer raises three issues for our consideration.5 First, Employer argues that WCJ Minnich was collaterally estopped from holding Employer liable for the medical treatment of Claimant's back and leg, after WCJ Ignasiak had previously determined that his work injury required no further treatment. Second, Employer argues that the Board erred in placing the burden on Employer to prove that the medical expenses at issue were not related to Claimant's work injury. Even so, the record demonstrated "a lack of connection between the treatment at issue [and] the 1988 work injury." Employer Brief at 16. Stated otherwise, the Board's finding that the medical expenses at issue treated Claimant's work injury was not supported by substantial evidence. Finally, Employer argues that the Board erred in imposing a 20% penalty. We address these issues seriatim .
Employer argues that WCJ Ignasiak's 2016 decision that "[C]laimant had achieved his maximum degree of medical improvement" and that "no further treatment [is] necessary [or] can be expected in the future relative to the low back condition as a result of the March 21, 1988 work event" precluded WCJ Minnich's decision in the instant case. Employer Brief at 12-13 (citing WCJ Ignasiak Decision, F.F. No. 4; C.R., Item 25, at 5). In deciding Claimant's penalty petition, WCJ Ignasiak considered whether Claimant's 2014 medical treatment was causally related to his 1988 work injury. Because Claimant did not appeal WCJ Ignasiak's finding that Clai...
To continue reading
Request your trial