Mid City Towers v. Workers' Comp. Appeal Bd.

• Decision Date: 10 July 2015
• Docket Number: No. 2021 C.D. 2014,2021 C.D. 2014
• Parties: Mid City Towers (National Development Corporation) and Zurich American Insurance Company, Petitioners v. Workers' Compensation Appeal Board (Green), Respondent
• Court: Pennsylvania Commonwealth Court

Mid City Towers (National Development Corporation)and Zurich American Insurance Company, Petitioners v. Workers' Compensation Appeal Board (Green), Respondent

No. 2021 C.D. 2014

COMMONWEALTH COURT OF PENNSYLVANIA

Submitted: April 24, 2015

July 10, 2015

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE McGINLEY

Mid City Towers (Employer) petitions for review from the order of the Workers' Compensation Appeal Board (Board) that affirmed the Workers' Compensation Judge's (WCJ) denial of Employer's Termination and Review Petitions and reversed the WCJ's determination that Employer's contest was reasonable. For the reasons stated below, this Court affirms the Board's decision to affirm the denial of Employer's Review and Termination Petitions and reverses the Board's determination that Employer's contest was unreasonable.

James Green (Claimant) was employed with Employer as an assistant maintenance supervisor. On February 22, 2009, Claimant slipped on a patch of ice while using a snow blower to remove snow from a walkway in the course and scope of his employment and twisted his right ankle. Employer issued a NCP (NCP) indicating a ruptured right ankle tendon. Claimant eventually underwent surgery in an attempt to repair the damage.

On September 12, 2011, Employer petitioned to terminate compensation benefits. Employer claimed Claimant was fully recovered from his work-related injury as of August 4, 2011, the date Claimant underwent an independent medical evaluation (IME) by Jeffery N. Kann, M.D. (Dr. Kann), a board certified orthopedic surgeon. Employer also filed a Review Petition to modify the injury listed on the NCP to a sprained ankle. Hearings were held on September 28, 2011, and on June 26, 2012.

Employer submitted the deposition testimony of Dr. Kann. Dr. Kann testified Claimant's foot and ankle pain were from "longstanding severe hind foot arthritis with significant deformity." Deposition of Jeffery N. Kann, M.D., February 12, 2012, (Dr. Kann Deposition) at 12; Reproduced Record (R.R.) at 67. This ankle and foot pain was the result of congenital flat feet. Dr. Kann Deposition at 17; R.R. at 72. Dr. Kann opined that the work injury Claimant suffered was a sprained ankle rather than a ruptured right ankle tendon and the work-related injury was not the cause of Claimant's current ankle pain. Dr. Kann Deposition at 30; R.R. at 85. Dr. Kann opined Claimant recovered from the ankle sprain, and there was "nothing here that points to the fact that this gentleman tore a tendon." Dr. Kann Deposition at 25, 28; R.R. at 80, 83. He also denied the existence of a causal link between Claimant's sprained ankle and his current disability. Dr. Kann Deposition at 26-27; R.R. at 81-82.

Claimant testified he did not have any pain associated with his feet until after the February 22, 2009, accident. Notes of Testimony, September 28, 2011, (N.T.) at 33-34; R.R. at 33-34. Claimant had swelling and pain in his right ankle and foot after the work injury, but not before the surgery. N.T. at 49; R.R. at 49. Claimant neither believed he was fully recovered, nor did he believe he was able to work without restrictions. N.T. at 25; R.R. at 25.

Claimant presented the deposition testimony of Jay Moritz, D.P.M. (Dr. Moritz), a board-certified podiatric surgeon. Dr. Moritz admitted on cross-examination that he could not say for certain that Claimant's current foot problems were the result of the February 22, 2009, accident. Deposition of Jay Moritz, D.P.M., June 12, 2012, (Dr. Moritz Deposition) at 29; R.R. at 145. Dr. Moritz testified the Claimant did have hereditary flat feet, but flat feet may be symptomatic and cause pain or be asymptomatic and not be painful. Dr. Moritz Deposition at 14; R.R. at 130. Dr. Moritz opined that Claimant was unable to return to work. Dr. Moritz Deposition at 21; R.R. at 137.

The WCJ denied the Termination and Review Petitions, but found the contest was reasonable. WCJ's Decision, October 24, 2012, Findings of Law Nos. 5 and 6 at 5 and 6.

The WCJ made the following findings of fact:

8. The testimony of Claimant is credible. He testified in a forthright and factual manner. He maintained that he had no pre-injury pain complaints and there were no pre-injury records demonstrating differently. There were several times where the Claimant reported that he had nopain in spite of his flat feet diagnosis. The one medical record relied on by the defendant was disputed by the Claimant and could easily have been in error given there were no pre-injury records to support pain complaints. The Claimant's testimony regarding his pre and post injury pain complaints (or lack thereof) is credible despite Dr. Kann's skepticism.

9. The opinions of Dr. Moritz are found to be more credible than the opinions of Dr. Kann. Dr. Moritz did not examine the Claimant until July 6, 2010 and Dr. Kann did not examine the Claimant until August 4, 2011. Dr. Moritz was refreshingly candid in his acknowledgement that there were initial findings consistent with an ankle sprain, initial findings that were consistent with a posterior tibial tendon dysfunction. He also testified that the description of injury of "ruptured right ankle tendon" would be a fair description of the injury Claimant suffered on February 22, 2009.

Although Dr. Kann was willing to base his opinion on the findings he read in the original medical records finding that they were consistent with ankle sprain and recovery therefrom, he did not examine the Claimant until more than 2 years after his work injury. Dr. Kann's opinion as to a diagnosis more than 2 years before his examination is not credible. He did not consider the fact that the [sic] there were no records of any ankle or foot pain predating the work injury, he did not give any explanation of the initial area of swelling in the Claimant's ankle being the same area of concern that is currently being addressed and he did not consider that he might have misinterpreted the Claimant's remarks about foot pain without treatment being the time between March 2009 and April 2010 (rather than pre-injury), as this is consistent with the testimony and evidence presented. He also did not give much credence to his own findings that the Claimant's foot problems are symmetric while the Claimant only has pain in the injured foot.

WCJ's Decision, October 24, 2012, Findings of Facts (F.F.) Nos. 8 and 9 at 4.

Employer appealed the WCJ's denial of the Termination Petition and Review Petition. Claimant cross-appealed the WCJ's finding of reasonable contest. The Board affirmed the denial of the Termination and Review Petitions.

The Board found Employer's contest was unreasonable as a matter of law, and reversed the WCJ's determination that Employer's contest was reasonable:

As to the Termination Petition, we acknowledge that a defendant's contest is reasonable where it presents medical evidence that, if found credible by the WCJ, could have supported a decision in its favor. However, Dr. Kann did not address whether Claimant had fully recovered from a ruptured tendon and only testified that Claimant merely sustained an ankle sprain, which was contrary to the accepted injury. Such testimony is incompetent as a matter of law to support a termination of benefits. As such, [Employer's] contest as to the Termination Petition was unreasonable.

[Employer's] contest as to the Review Petition is also unreasonable. Under applicable case law, which was available before [Employer] filed its Review Petition, [Employer] was precluded, as a matter of law, from seeking to litigate its prior admission that Claimant sustained a ruptured tendon as a result of her [sic] employment with [Employer].

Board Opinion, October 8, 2014, at 9 (citations omitted).

Employer submits three questions to this Court for review.¹ Whether the WCJ capriciously disregarded material evidence, whether the WCJ erred as a matter of law in denying the Termination and Review Petitions, and whether the Board erred when it determined Employer's contest was unreasonable.

The first question is whether the WCJ erred in denying the Employer's Termination Petition. The Employer claims the WCJ rejected Dr. Kann's testimony for arbitrary and capricious reasons.

In order to successfully terminate benefits, an employer must prove that all disability from a compensable injury has ceased. Udvari v. Workmen's Compensation Appeal Board (US Air, Inc.), 758 A.2d 1290, 1291 (Pa. 1997) citing Pieper v. Amtek-Thermox Instruments Division, 584 A.2d 301 (Pa. 1990). In a case where the claimant complains of continued pain, the employer's burden of proof is met when an employer's medical expert unequivocally testifies that it is his opinion, within a reasonable degree of medical certainty, that the claimant is fully recovered, can return to work without restrictions and that there are no objective medical findings which either substantiate the claims of pain or connect them to the work injury. Id. at 1293. A credibility determination is the exclusive province of the WCJ, and such a rejection of testimony is not a disregard, but simply a rejection. Williams v. Workers' Compensation Appeal Board (USXCorporation - Fairless Works), 862 A.2d 137, 145 (Pa. Cmwlth. 2004). A capricious disregard of evidence occurs only when the fact finder deliberately ignores relevant, competent evidence. Id. citing Capasso v. Workers' Compensation Appeal Board (RACS Associates, Inc.), 851 A.2d 997 (Pa. Cmwlth 2004).

The WCJ did not "capriciously disregard" the evidence. All that is required is that the WCJ consider the evidence and state the reasons for rejection. Williams, 862 A.2d at 144, 145. The WCJ noted the details of Dr. Kann's testimony in her opinion:

He testified regarding a history of the Claimant's work injury, the treatment records he reviewed and his physical examination of the Claimant. He noted that the

...