Fitchett v. Workers' Comp. Appeal Bd.

• Decision Date: 06 June 2013
• Citation: 67 A.3d 80
• Parties: Jean FITCHETT, Petitioner v. WORKERS' COMPENSATION APPEAL BOARD (SCHOOL DISTRICT OF PHILADELPHIA), Respondent.
• Court: Pennsylvania Commonwealth Court

67 A.3d 80

Jean FITCHETT, Petitioner

v.WORKERS' COMPENSATION APPEAL BOARD (SCHOOL DISTRICT OF PHILADELPHIA), Respondent.

Commonwealth Court of Pennsylvania.

Submitted Nov. 21, 2012.

Decided April 8, 2013.

Reargument Denied June 6, 2013.

Kenneth M. Kapner, Philadelphia, for petitioner.

William E. Malone, Jr., Philadelphia, for respondent.

BEFORE: PELLEGRINI, President Judge, SIMPSON, Judge, and COLINS, Senior Judge.

OPINION BY Judge SIMPSON.¹

Jean Fitchett (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed a decision of a Workers' Compensation Judge (WCJ) granting Claimant's penalty petitions, dismissing the School District of Philadelphia's (Employer) petition to terminate compensation benefits (termination petition), but suspending Claimant's workers' compensation benefits as of June 4, 2005, on the ground she voluntarily left the workforce. Claimant states eight issues for our review, including whether the WCJ erred in suspending her benefits on the basis that she retired. For the reasons that follow, we affirm in part and reverse in part.

I. Background

In February 2001, while working as an instructional aide, Claimant sustained a compensable injury as a result of a student attack. Thereafter, Employer issued a notice of compensation payable (NCP) recognizing Claimant's injuries as a sprain of the left shoulder, left thumb, neck and lumbar spine and providing for weekly workers' compensation benefits of $355.59. Employer issued a notice of suspension for failure to return form LIBC–760 (suspension notice) as of September 5, 2003, due to her failure to return the LIBC–760 (verification of employment form) allegedly mailed to her in July 2003. On October 21, 2003, Employer filed a termination petition alleging Claimant fully recovered from her work-related injuries as of September 15, 2003.

In October 2003, Claimant filed a penalty petition alleging Employer unilaterally suspended Claimant's benefits in violation of the Workers' Compensation Act (Act).² After the WCJ denied Employer's request for supersedeas of Claimant's weekly benefits, Claimant filed another penalty petition in May 2004, contending that Employer failed to pay attorney fees in accordance with the order denying the supersedeas request.

At a November 2004 hearing, Employer introduced the deposition testimony of Dr. Adam M. Meyers (First IME Physician), a physician board certified in physical medicine and rehabilitation, in support of its termination petition. First IME Physician testified that when he examined Claimant in September 2003, she reported “dull, aching pain across her interscapular region encompassing the entire shoulder girdle with pain traveling into the bilateral upper extremities to the level of the fingers.” Dep. of Dr. Meyers, 3/22/04, at 8. Claimant also reported she could not lift her arms over her head or rotate her shoulders. First IME Physician's physical examination of Claimant revealed she could ambulate without any signs of pain, that she had full cervical range of motion, and that there was no evidence of cervical root tension signs. First IME Physician explained that a neurological examination of the bilateral upper extremities revealed no signs of motor weakness, evidence of abnormal sensation or muscle atrophy, and that Claimant's reflexes were within normal limits.

First IME Physician's examination of Claimant's shoulder revealed no evidence of rotator cuff pathology, scapular winging or atrophy. Claimant could actively elevate her left shoulder to approximately 90 degrees and passively go through the full range of motion. His examination of Claimant's hands revealed no evidence of atrophy, carpal tunnel syndrome or neuropathy in the median nerve. Finally, he testified his evaluation of X-rays of Claimant's bilateral upper extremities revealed no evidence of dislocation, subluxation or significant bone abnormalities. Based on his examination and review of Claimant's records, First IME Physician concluded Claimant suffered “myofascial injuries to the cervical spine, lumbar spine, thumb and ... bilateral shoulders” as a result of the work incident of February 28, 2001. Id. at 14. First IME Physician ultimately opined Claimant fully recovered from her work-related injuries as of his September 15, 2003 evaluation and that she was fully capable of returning to work without restriction as of that date.

Claimant testified that after the February 2001 work incident, she experienced pain in her neck and arms, and a swollen left thumb. She continued to have chronic headaches, pain from the base of her neck radiating to her left arm, pain in her right shoulder, and loss of sensation in her left leg, all of which prevented her from performing her job duties.

With respect to her penalty petitions, Claimant testified she received no benefits since September 5, 2003; she never received form LIBC–760 ³ prior to receiving the suspension notice on September 18, 2003; and she returned the suspension notice, along with the completed form, to Employer on September 24, 2003. Claimant also presented a completed LIBC–760 at the hearing.

Claimant testified on cross-examination that she began receiving pension benefits of $699 per month in April 2002, and social security retirement benefits of $1,101 per month as of October 2004, but explained that she only accepted these benefits because “I was being impoverished by lack of funds coming in [from employment].” Notes of Testimony (N.T.), 11/02/04, at 59. Claimant further stated she did not look for work following her 2001 work injury. When asked whether she considered herself retired, Claimant responded “Well, I'm collecting retirement,” and subsequently clarified that if not for her work injuries, she had planned to continue working. Id. at 72, 76.

In a November 2004 interlocutory order, the WCJ ordered Employer to reinstate Claimant's benefits as of November 2, 2004. Although Employer properly suspended Claimant's benefits for failure to return the LIBC–760, Claimant presented the completed form at the November 2, 2004 hearing. Therefore, Employer had no factual or legal basis to continue the suspension of Claimant's benefits as of that date. Nonetheless, the WCJ noted that the suspension of benefits from September 5, 2003, through November 1, 2004, remained an unresolved issue awaiting further evidence from the parties.

Significantly, the WCJ also ordered that Employer was entitled to a credit for pension and social security retirement benefits Claimant received against the renewed receipt of weekly compensation benefits.

At a subsequent hearing held on July 1, 2008, Employer introduced the deposition testimony of Dr. Anthony Puglisi (Second IME Physician), a board certified orthopedic surgeon who examined Claimant in April 2007. Second IME Physician testified that during the examination, Claimant complained of headaches and pain in her right shoulder and neck.

Second IME Physician also testified a physical examination of Claimant revealed a “fairly normal range” of left shoulder motion and “satisfactory” range of cervical spinal motion. Dep. of Dr. Puglisi, 5/22/08, at 22, 24. He further testified a review of Claimant's medical records, including a cervical spinal MRI and an EMG study, revealed only minimal degenerative changes and no injury to the neural structures. Second IME Physician's examination and review of Claimant's records did not correlate with Claimant's subjective complaints of pain. Claimant displayed “a lot of overembellishment of complaints” and “there [were] a lot of nonphysiologic findings” which he could not substantiate with the physical findings. Id. at 31–32. Second IME Physician ultimately opined Claimant “resolved any injury of strain or sprain to the left shoulder, cervical spine, or of the left upper extremity,” and she could return to her pre-injury job with Employer. Id. at 32–33. Finally, he noted Claimant had some decreased range of motion in her right shoulder, which was not uncommon after undergoing rotator cuff surgery. Id. at 33.

Claimant then introduced the deposition testimony of Dr. Michael Martin Cohen (Neurologist), a board certified neurologist who began treating Claimant in August 2001. Neurologist testified Claimant complained of headaches, dizziness, insomnia, blurred vision, feeling off-balance, constant neck pain radiating into the left upper extremity and mid and low back pain. His initial physical examination revealed cervical tenderness and spasm, left hand weakness and diminished sensation in the C8/ulnar distribution over the left small and ring fingers. Neurologist initially diagnosed Claimant with post-traumatic headaches, left cervical radiculopathy, left cubital tunnel syndrome or ulnar neuropathy, and back and neck strain. After that diagnosis,he explained he conducted an EMG on in September 2001, which revealed a mixed nerve injury with left C8/T1 radiculopathy. He testified that at subsequent examinations in December 2007 and March 2008, Claimant's core symptoms of headaches, neck pain and left shoulder pain remained unchanged. However, Neurologist testified Claimant no longer needed treatment for her left thumb injury, and that her lumbar spine injury had resolved. Neurologist further testified he never found symptom magnification by Claimant, and opined she could not return to the workforce due to her unresolved nerve, shoulder, neck and headache conditions.⁴

At a final hearing in December 2008, Claimant testified she still had headaches, pain on certain neck movements, ongoing left shoulder discomfort and pain in her thumb that caused her to drop things. Claimant also testified she experienced pain in her right shoulder, that she had rotator cuff surgery in 2005 and physical therapy following her surgery. Moreover, Claimant testified she never returned to work following her February 2001 work injury. Although she planned to find employment as a...